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THE COURT,
composed as above,
after deliberation,
delivers the following Judgment:
1. On 16 September 2004 Romania filed in the Registry of the Court an
Application dated 13 September 2004, instituting proceedings against Ukraine
concerning the delimitation of the continental shelf and the exclusive
economic zones of Romania and Ukraine in the Black Sea.
In its Application, Romania seeks to found the jurisdiction of the Court on
the provisions of paragraph 4 (h) of the Additional Agreement constituted by
an exchange of letters of 2 June 1997
between the Ministers for Foreign Affairs of Romania and Ukraine. The
Additional Agreement was concluded with reference to Article 2 of the Treaty
on the Relations of Good Neighbourliness and Co-operation between Romania
and Ukraine, signed on 2 June 1997 (hereinafter the “Treaty on Good
Neighbourliness and Co-operation”). Both instruments entered into force on
22 October 1997.
2. Pursuant to Article 40, paragraph 2, of the Statute, the Registrar
immediately communicated a certified copy of the Application to the
Government of Ukraine; and, in accordance with paragraph 3 of that Article,
all States entitled to appear before the Court were notified of the
Application.
3. Pursuant to the instructions of the Court under Article 43 of the Rules
of Court, the Registrar addressed to States parties to the United Nations
Convention on the Law of the Sea of 10 December 1982 the notifications
provided for in Article 63, paragraph 1, of the Statute of the Court. In
addition, the Registrar addressed to the European Community, which is also
party to that Convention, the notification provided for in Article 43,
paragraph 2, of the Rules of Court, as adopted on 29 September 2005, and
asked that organization whether or not it intended to furnish observations
under that provision. In response, the Registrar was informed that the
European Community did not intend to submit observations in the case.
4. Since the Court included upon the Bench no judge of the nationality of
either of the Parties, each Party proceeded to exercise its right conferred
by Article 31, paragraph 3, of the Statute to choose a judge ad hoc to sit
in the case. Romania chose Mr. Jean-Pierre Cot and Ukraine Mr. Bernard H.
Oxman.
5. By an Order dated 19 November 2004, the Court fixed 19 August 2005 and 19
May 2006, respectively, as the time-limits for the filing of the Memorial of
Romania and the Counter-Memorial of Ukraine; those pleadings were duly filed
within the time-limits so prescribed.
6. By an Order of 30 June 2006, the Court authorized the submission of a
Reply by Romania and a Rejoinder by Ukraine, and fixed 22 December 2006 and
15 June 2007 as the respective time-limits for the filing of those
pleadings. The Reply of Romania was filed within the time-limits thus fixed.
By an Order of 8 June 2007 the Court, at the request of Ukraine, extended to
6 July 2007 the time-limit for the filing of the Rejoinder. Ukraine duly
filed its Rejoinder within the time-limit as thus extended.
7. By letter dated 23 August 2007 and received in the Registry on 30 August
2007, the Agent of Romania informed the Court that his Government wished to
produce a new document in accordance with Article 56 of the Rules of Court
and provided certain explanations in justification of its request, namely
that the document was necessary “in order to make as complete a disclosure
as possible, both to the Ukrainian party and to the Court, of material
evidence” and that the “lateness of disclosure” was due to the fact that the
document had not been “filed together with the main archival sources
relevant to this matter”. In response, the Agent of Ukraine informed the
Court that his Government did not consent to the production of the new
document, on the grounds that Romania had not “acted in compliance with
Practice Direction IX, since it did not indicate why it considered it
necessary to file this new document now, nor did it provide an explanation
why it did not produce this map at an earlier stage in these proceedings”.
In view of the absence of consent of Ukraine, on 10 December 2007, the
Registrar, on the instructions of the Court, requested that the Government
of Romania provide further explanations as to why the new document should be
regarded as necessary. Such additional explanations were duly submitted by
the Government of Romania on 18 December 2007. On 23 January 2008, the
Parties were informed that the Court, after considering the views of the
Parties, had decided, pursuant to Article 56, paragraph 2, of the Rules of
Court, to authorize the production by the Government of Romania of the new
document in question.
8. In accordance with Article 53, paragraph 2, of the Rules of Court, the
Court decided, after ascertaining the views of the Parties, that copies of
the pleadings and documents annexed would be made available to the public as
from the opening of the oral proceedings.
9. Public hearings were held between 2 and 19 September 2008, at which the
Court heard the oral arguments and replies of:
For Romania: H.E. Mr. Bogdan Aurescu,
Mr. Alain Pellet,
Mr. Cosmin Dinescu,
Mr. James Crawford,
Mr. Vaughan Lowe,
Mr. Daniel Müller,
Mr. Simon Olleson.
For Ukraine: H.E. Mr. Volodymyr A. Vassylenko,
Mr. Rodman R. Bundy,
Sir Michael Wood,
Mr. Jean-Pierre Quéneudec,
Ms Loretta Malintoppi.
10. At the hearings, a judge put questions to the Parties, to which replies
were given orally in
accordance with Article 61, paragraph 4, of the Rules of Court.
*
11. In its Application, the following claims were made by Romania:
“Reserving the right to complement, amend or modify the present request in
the course of the proceedings, Romania requests the Court to draw in
accordance with the international law, and specifically the criteria laid
down in Article 4 of the Additional Agreement, a single maritime boundary
between the continental shelf and the exclusive economic zones of the two
States in the Black Sea.”
12. In the written proceedings, the following submissions were presented by
the Parties:
On behalf of the Government of Romania,
in the Memorial:
“For the reasons set out above, the Government of Romania respectfully
requests the Court to draw a single maritime boundary dividing the
continental shelf and the exclusive economic zones of Romania and Ukraine in
the Black Sea, having the following description:
from Point F, at 45° 05' 21" N, 30° 02' 27" E, on the 12 nm arc surrounding
Serpents’ Island, to Point X, at 45° 14' 20" N, 30° 29' 12"’ E,
from Point X in a straight segment to Point Y, at 45° 11' 59" N, 30° 49' 16"
E,
then on the line equidistant between the Romanian and Ukrainian adjacent
coasts, from Point Y to Point T, at 45° 09' 45" N, 31° 08' 40" E,
and then on the line median between the Romanian and Ukrainian opposite
coasts, from Point T to Point Z, at 43° 26' 50" N, 31° 20' 10" E.”
in the Reply:
“For the reasons set out in the Memorial, as well as in this Reply, Romania
respectfully requests the Court to draw a single maritime boundary dividing
the maritime areas of Romania and Ukraine in the Black Sea, having the
following description:
(a) from Point F, at 45° 05' 21" N, 30° 02' 27" E, on the 12 nm arc
surrounding Serpents’ Island, to Point X, at 45° 14' 20" N, 30° 29' 12" E,
(b) from Point X in a straight segment to Point Y, at 45° 11' 59" N, 30° 49'
16" E,
(c) then on the line equidistant between the Romanian and Ukrainian adjacent
coasts, from Point Y to Point T, at 45° 09' 45" N, 31° 08' 40" E,
(d) and then on the line median between the Romanian and Ukrainian opposite
coasts, from Point T to Point Z, at 43° 26' 50" N, 31° 20' 10" E.”
On behalf of the Government of Ukraine,
in the Counter-Memorial and Rejoinder:
“In the light of the facts and legal principles set out in [Ukraine’s
Counter-Memorial and Rejoinder], and rejecting Romania’s claims to the
contrary, Ukraine respectfully submits that the Court adjudge and declare
that the delimitation of the continental shelf and exclusive economic zones
between the Parties is a delimitation line the course of which, employing
the Pulkovo datum (i.e., using the Krasovsky ellipsoid), is as follows:
From the point identified in Article 1 of the 2003 Treaty having the
co-ordinates of 45° 05' 21" N; 30° 02' 27" E, the delimitation line extends
in a south-easterly direction to Point 2, having the co-ordinates of 44° 54'
00" N; 30° 06' 00" E, and thence to Point 3, having the co-ordinates of 43°
20' 37" N; 31° 05' 39" E, and then continues along the same azimuth, until
the boundary reaches a point where the interests of third States potentially
come into play.”
13. At the oral proceedings, the following submissions were presented by the
Parties:
On behalf of the Government of Romania,
at the hearing of 16 September 2008:
“Romania respectfully requests the Court to draw a single maritime boundary
dividing the maritime areas of Romania and Ukraine in the Black Sea, having
the following description:
(a) from Point F, at 45° 05' 21" N, 30° 02' 27" E, on the 12 nm arc
surrounding Serpents’ Island, to Point X, at 45° 14' 20" N, 30° 29' 12" E;
(b) from Point X in a straight segment to Point Y, at 45° 11' 59" N, 30° 49'
16" E;
(c) then on the line equidistant between the relevant Romanian and Ukrainian
adjacent coasts, from Point Y, passing through Point D, at 45° 12' 10" N,
30° 59' 46" E, to Point T, at 45° 09' 45" N, 31° 08' 40" E;
(d) and then on the line median between the relevant Romanian and Ukrainian
opposite coasts, from Point T -- passing through the points of 44° 35' 00"
N, 31° 13' 43" E and of 44° 04' 05" N, 31° 24' 40" E, to Point Z, at 43° 26'
50" N, 31° 20' 10" E.” [FN1]
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[FN1]
See sketch-map No. 1 prepared for illustrative purposes only.
------------------------------------------------------------------------------------------------------------
On behalf of the Government of Ukraine,
at the hearing of 19 September 2008:
“For the reasons given in Ukraine’s written and oral pleadings, Ukraine
requests the Court to adjudge and declare that the line delimiting the
continental shelf and exclusive economic zones between Ukraine and Romania
is as follows:
(a) from the point (Point 1) identified in Article 1 of the 2003 Treaty
between Ukraine and Romania on the Regime of the Ukrainian-Romanian State
Border, having the co-ordinates of 45° 05' 21" N; 30° 02' 27" E, the line
runs along a straight line to Point 2, having the co-ordinates of 44° 54'
00" N; 30° 06' 00" E; then
(b) from Point 2, the line runs along an azimuth of 156° to Point 3, having
the co-ordinates of 43° 20' 37" N; 31° 05' 39" E; and then continues along
the same azimuth until it reaches a point where the interests of third
States potentially come into play.
The co-ordinates are referenced to the Pulkovo datum (i.e., using the
Krasovsky ellipsoid), and all lines are loxodromes.” FN1
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FN1
See sketch-map No. 1 prepared for illustrative purposes only.
------------------------------------------------------------------------------------------------------------
***
Sketch-Map No. 1: The Maritime
Boundary Line Claimed by Romania and Ukraine
2. General geography
14. The maritime area within which the delimitation in the present case is
to be carried out is located in the north-western part of the Black Sea.
15. The Black Sea is an enclosed sea connected with the Mediterranean Sea by
the Straits of the Dardanelles, the Sea of Marmara and the Bosphorus. The
Black Sea is situated between 40° 56' and 46° 33' N and between 27° 27' and
41° 42' E. The Crimean Peninsula extends southward from Ukraine’s mainland
into the Black Sea. The Black Sea has a surface area of some 432,000 sq km
and consists of the territorial seas and exclusive economic zones of the
coastal States which border it.
16. In the north-western part of the Black Sea, approximately 20 nautical
miles to the east of the Danube delta, is situated a natural feature called
Serpents’ Island. Serpents’ Island is above water at high tide, has a
surface area of approximately 0.17 sq km and a circumference of
approximately 2,000 m.
3. Preliminary legal issues
3.1. Subject-matter of the dispute
17. The dispute between Romania and Ukraine concerns the establishment of a
single maritime boundary delimiting the continental shelf and exclusive
economic zones between the two States in the Black Sea.
18. The two States, when they concluded on 2 June 1997 the Treaty on Good
Neighbourliness and Co-operation, agreed also through the Additional
Agreement (see paragraph 1 above), that they “shall negotiate an Agreement
on the delimitation of the continental shelf and the exclusive economic
zones in the Black Sea” (Additional Agreement, para. 4). Negotiations for
the conclusion of such Agreement were to start “as soon as possible, during
a period of three months
from the date of the entering into force of the Treaty on Good
Neighbourliness and Co-operation” (Additional Agreement, para. 4 (g)). The
Treaty entered into force on 22 October 1997, the negotiations on the
delimitation of the continental shelf and exclusive economic zones opened in
January 1998, but despite their 24 rounds, the last being held in September
2004, as well as ten rounds at an expert level, no delimitation agreement
was reached.
19. Under these circumstances, Romania seised the Court on 16 September 2004
by filing, in the Registry of the Court, its Application instituting
proceedings in the present case.
3.2. Jurisdiction of the Court and its scope
20. Romania invokes as a basis for the Court’s jurisdiction Article 36,
paragraph 1, of the Statute of the Court and paragraph 4 (h) of the
Additional Agreement, the latter of which provides:
“If these negotiations shall not determine the conclusion of the
above-mentioned agreement in a reasonable period of time, but not later than
2 years since their initiation, the Government of Romania and the Government
of Ukraine have agreed that the problem of delimitation of the continental
shelf and the exclusive economic zones shall be solved by the UN
International Court of Justice, at the request of any of the parties,
provided that the Treaty on the regime of the State border between Romania
and Ukraine has entered into force. However, should the International Court
of Justice consider that the delay of the entering into force of the Treaty
on the regime of the State border is the result of the other Party’s fault,
it may examine the request concerning the delimitation of the continental
shelf and the exclusive economic zones before the entry into force of this
Treaty.”
21. It follows from the text of the compromissory clause that two conditions
have to be met before either of the Parties is entitled to submit the case
to the Court. The first condition is that no delimitation agreement should
have been concluded “in a reasonable period of time, but not later than 2
years” since the start of negotiations. No agreement was reached between the
Parties in the six years during which the negotiations were held (see
paragraph 18 above). The second condition, namely that the Treaty on the
Régime of the State Border should have entered into force, has also been
fulfilled. On 17 June 2003, the Treaty between Romania and Ukraine on the
Romanian-Ukrainian State Border Régime, Collaboration and Mutual Assistance
on Border Matters (hereinafter the “2003 State Border Régime Treaty”) was
signed, and it entered into force on 27 May 2004.
22. The Parties are in agreement that all the conditions for the Court’s
jurisdiction were satisfied at the time of the filing of the Application and
that the Court accordingly has jurisdiction to decide the case. However,
they differ as to the exact scope of the jurisdiction conferred upon the
Court.
*
23. The issue of the scope of the Court’s jurisdiction was raised by Ukraine
in the course of the written proceedings in response to Romania’s contention
that “the initial segment of the boundary separating the Romanian exclusive
economic zone and continental shelf from the Ukrainian territorial waters
around Serpents’ Island” between “Point F” (Romania’s way of referring to
the point of intersection of the territorial seas of Romania and Ukraine
established by
the 2003 State Border Régime Treaty) and “Point X” (the endpoint, according
to Romania, of the
agreed boundary on the 12-mile arc around Serpents’ Island) was established
by bilateral agreements. In the view of Romania, “the proper way for the
Court to conduct the delimitation” is to confirm the boundary between these
two points and then to proceed to the determination of the delimitation line
in the other segments where the line has not yet been established by the two
States.
24. Ukraine argues that the jurisdiction of the Court is “restricted to the
delimitation of the areas of continental shelf and the exclusive economic
zones of the Parties”. In its view, the Court has no jurisdiction to delimit
other maritime zones pertaining to either of the Parties and in particular
their respective territorial seas. Ukraine contends that the “delimitation
has to begin at the outer limit of the territorial waters of the two States”
and the line to be drawn by the Court “shall be a line dividing exclusively
areas of continental shelf and EEZ”. It claims that the Court is excluded
from drawing a line dividing the territorial sea of one State from the
continental shelf and exclusive economic zone of the other State. For this
reason, Ukraine contends, the Court has no
Jurisdiction
“for the drawing of a delimitation line as claimed by Romania between the
so-called points F and X along a 12-nautical mile segment of arc around
Serpent’ Island, since that portion of [the] line would delimit Ukraine’s
territorial sea and Romania’s alleged areas of continental shelf and EEZ”.
Ukraine adds that the Parties’ agreement to confer jurisdiction on the Court
has
“the consequence that the boundaries to be delimited by the Court must be
such that, starting from the agreed terminal point of their territorial sea
boundary, each Party has some zones of continental shelf and EEZ immediately
to the east and south of that agreed terminal point”.
Ukraine notes however that in its view “this jurisdictional question does
not need to be decided because, from Point F, the line proceeds in a
south-easterly direction as a line delimiting areas of continental shelf and
the EEZs appertaining to each of the Parties”.
*
25. Romania argues in response that international courts “do not consider
themselves inhibited from establishing maritime boundaries separating, on
the one hand, the continental shelf (or the exclusive economic zone) of one
party and, on the other hand, other maritime areas (including the
territorial sea) of the other party”. In any event, in its view, no
practical consequences flow from the Parties’ divergent approaches to the
Court’s jurisdiction. As there is already a maritime boundary running along
the 12-nautical mile line around Serpents’ Island up to Point X established
by bilateral agreements, even if the Court had no jurisdiction to delimit
the continental shelf and exclusive economic zone of one Party from the
territorial sea of the other, it
would still have to take into account the agreements in force between
Romania and Ukraine and the resulting maritime boundary. Thus, Romania
concludes that, whether the Court has jurisdiction to perform the
delimitation between Points F and X or not, this will have no influence on
the drawing of a new delimitation line, which in any event will begin from
Point X.
**
26. The Court observes that Ukraine is not contending that under
international law, as a matter of principle, there cannot be a delimitation
line separating the territorial sea of one State from the exclusive economic
zone and the continental shelf of another State. In fact, such a line was
determined by the Court in its latest Judgment on maritime delimitation (see
Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea, Judgment of 8 October 2007). Ukraine rather relies on the
terms of paragraph 4 (h) of the Additional Agreement, which in its view,
“suggest[s] that the Parties did not anticipate that the Court would be
called upon to delimit an all-purpose maritime boundary along the outer
limit of Ukraine’s territorial sea” around Serpents’ Island.
27. The wording of paragraph 4 (h) of the Additional Agreement that “the
problem of delimitation of the continental shelf and the exclusive economic
zones shall be solved by the . . .
International Court of Justice”, is neutral as to whether these zones must
be found on both sides of the delimitation line throughout its length. The
Court is of the view that it has to interpret the provision of paragraph 4
(h) of the Additional Agreement conferring jurisdiction on the Court in
the light of the object and purpose of that Agreement and its context.
That Agreement was concluded on the same day as the Treaty on Good
Neighbourliness and Co-operation between Romania and Ukraine, which in
Article 2, paragraph 2, provides:
“The Contracting Parties shall conclude a separate Treaty on the regime of
the border between the two states and shall settle the problem of the
delimitation of their continental shelf and of economic exclusive zones in
the Black Sea on the basis of the principles and procedures agreed upon by
an exchange of letters between the ministers of foreign affairs, which shall
take place simultaneously with the signature of the Treaty. The
understandings included in this exchange of letters shall enter into force
simultaneously with the entry into force of this Treaty.”
28. The Additional Agreement specifies the manner in which effect is to be
given to the commitment of both Parties stated in Article 2, paragraph 2, of
the Treaty on Good Neighbourliness and Co-operation quoted above. The
Parties specified, in particular, in paragraph 1 of the Additional Agreement
that a Treaty on the régime of the border between the two States should be
concluded “not later than 2 years from the date of the entering into force
of the Treaty on Good Neighbourliness and Co-operation”, which took place on
22 October 1997. In paragraph 4 of the same Agreement, the Parties specified
that an Agreement on the delimitation of the continental shelf and the
exclusive economic zones in the Black Sea should be negotiated by the
Parties. The Court considers that the Parties intended that all boundary
issues between them, whether on land or at sea, be resolved in a
comprehensive way. Under the narrow interpretation of Ukraine, the Court
would not “settle the problem of the delimitation” between the two States
were it not to find substantively for Ukraine.
The Court notes that the State Border Régime Treaty was concluded on 17 June
2003, i.e. within six years from the entry into force of the Treaty on Good
Neighbourliness and Co-operation, not two as originally contemplated. The
2003 State Border Régime Treaty, in its Article 1, describes the boundary
line between the two Parties not only on land but also the line separating
their territorial seas, “up to the point of 45° 05' 21" north latitude and
30° 02' 27" east longitude, which is the meeting point [of Ukraine’s
territorial sea around Serpents’ Island] with the Romanian State border
passing on the outer limit of its territorial sea”.
29. No agreement on the delimitation of the continental shelf and exclusive
economic zones in the Black Sea was reached. The Parties contemplated in
paragraph 4 (h) of the Additional Agreement that, in such circumstances,
either of them could request this Court to decide the issue of the
delimitation. The Court’s judgment will thus substitute for the non-existent
agreement between the Parties on the delimitation of the continental shelf
and the exclusive economic zones and shall resolve all such matters which
have not been settled by the Parties.
30. In discharging its task, the Court will duly take into account the
agreements in force between the Parties relating to the delimitation of
their respective territorial seas. The Court has no jurisdiction to delimit
the territorial seas of the Parties. Its jurisdiction covers the
delimitation of
their continental shelf and the exclusive economic zones. However, contrary
to what has been suggested by Ukraine, nothing hinders that jurisdiction
from being exercised so that a segment of
the line may result in a delimitation between, on the one hand, the
exclusive economic zone and the continental shelf of one State, and, on the
other hand, the territorial sea of the other State at its seaward limit.
3.3. Applicable law
31. Both Romania and Ukraine are parties to the 1982 United Nations
Convention on the Law of the Sea (UNCLOS). Romania deposited its instrument
of ratification on 17 December 1996 and Ukraine on 26 July 1999.
Articles 74 and 83 of UNCLOS are relevant for the delimitation of the
exclusive economic zone and the continental shelf, respectively. Their texts
are identical, the only difference being that Article 74 refers to the
exclusive economic zone and Article 83 to the continental shelf. These
Articles provide as follows:
“1. The delimitation of the exclusive economic zone [the continental shelf]
between States with opposite or adjacent coasts shall be effected by
agreement on the basis of international law, as referred to in Article 38 of
the Statute of the International Court of Justice, in order to achieve an
equitable solution.
2. If no agreement can be reached within a reasonable period of time, the
States concerned shall resort to the procedures provided for in Part XV.
3. Pending agreement as provided for in paragraph 1, the States concerned,
in a spirit of understanding and co-operation, shall make every effort to
enter into provisional arrangements of a practical nature and, during this
transitional period, not to jeopardize or hamper the reaching of the final
agreement. Such arrangements shall be without prejudice to the final
delimitation.
4. Where there is an agreement in force between the States concerned,
questions relating to the delimitation of the exclusive economic zone [the
continental shelf] shall be determined in accordance with the provisions of
the agreement.”
32. Romania states that the Parties concur in the view that the
Procès-Verbaux concluded between Romania and the USSR in 1949, 1963 and 1974
are agreements which are legally binding on the Parties. Romania contends
that these agreements, which establish the initial segment of the maritime
boundary, should be taken into account as agreements relating to the
delimitation within the meaning of Articles 74, paragraph 4, and 83,
paragraph 4, of UNCLOS. Another such agreement is the 2003 State Border
Régime Treaty which delimited the maritime boundary up to the outer limit of
the territorial sea at the point of intersection of Romania’s territorial
sea with the 12-nautical mile arc drawn around Serpents’ Island. According
to Romania, in any event, the question as to whether or not the agreements
fall within the above-mentioned category is of no consequence: they are
binding on the Parties, and it is for the Court to ensure their application.
33. Romania argues that the principles recognized by the Parties in the 1997
Additional Agreement are applicable both to the diplomatic negotiations
between the two States and for the purposes of any eventual settlement of
the dispute by the Court. These principles are listed in paragraph 4 of the
1997 Additional Agreement as follows:
“(a) the principle stated in article 121 of the United Nations Convention on
the Law of the Sea of December 10, 1982, as applied in the practice of
states and in international case jurisprudence;
(b) the principle of the equidistance line in areas submitted to
delimitation where the coasts are adjacent and the principle of the median
line in areas where the coasts are opposite;
(c) the principle of equity and the method of proportionality, as they are
applied in the practice of states and in the decisions of international
courts regarding the delimitation of continental shelf and exclusive
economic zones;
(d) the principle according to which neither of the Contracting Parties
shall contest the sovereignty of the other Contracting Party over any part
of its territory adjacent to the zone submitted to delimitation;
(e) the principle of taking into consideration the special circumstances of
the zone submitted to delimitation”.
Romania also affirms that the delimitation should be carried out in
accordance with the provisions of UNCLOS.
34. Romania asserts, with regard to the Additional Agreement, that if the
Parties had intended to impose limits on the relevance of the “principles
and procedures” set out in paragraph 4 therein, that would have been made
clear in the Agreement. Romania contends that its position is supported by
the terms of Article 2, paragraph 2, of the Treaty on Good Neighbourliness
and Co-operation, according to which the parties “shall settle the problem
of the delimitation of their continental shelf and of economic exclusive
zones in the Black Sea on the basis of the principles
and procedures agreed upon by [the 1997] exchange of letters . . .”. Romania
asserts with reference to this provision that no distinction is made
between, on the one hand, the negotiations and, on the other hand, the other
procedures to which the Parties might have recourse to solve the problem of
delimitation.
35. Romania submits that the Treaty on Good Neighbourliness and Co-operation
and the Additional Agreement enshrine a legal commitment reached between
Romania and Ukraine, according to which, in exchange for the fact that
Romania formally confirmed that Serpents’ Island belonged to Ukraine,
Ukraine accepted the delimitation principles laid down by the Additional
Agreement for reaching an equitable solution to the delimitation. In
particular, according to Romania, Ukraine accepted the applicability of
Article 121, paragraph 3, of UNCLOS in the delimitation of the continental
shelf and exclusive economic zones, as interpreted by Romania when signing
and ratifying it. The relevant part of its declaration reads as follows:
“3. Romania states that according to the requirements of equity -- as it
results from Articles 74 and 83 of the Convention on the Law of the Sea --
the uninhabited islands without economic life can in no way affect the
delimitation of the maritime spaces belonging to the mainland coasts of the
coastal States.”
Romania contends that, under these circumstances, Ukraine’s acceptance of
the reference to Article 121 as one of the principles to be applied in
delimitation clearly indicates that the two States agreed in 1997 that
Serpents’ Island could receive no other effect in addition to those effects
already produced by it on the delimitation of the territorial seas of the
two Parties.
*
36. Ukraine contends that the Court is obliged to decide disputes in
accordance with international law, as laid down in Article 38, paragraph 1,
of the Statute. In relation to maritime delimitation and as between the
Parties to the present case, “that applicable body of rules of international
law comprises principally the provisions of UNCLOS and certain specific
rules which have become well established in the jurisprudence of the Court”.
37. According to Ukraine, the 1997 Additional Agreement is an international
treaty binding upon the Parties, however, “its provisions do not embody an
agreement which relates to the present proceedings”. The principles
enunciated therein were to form the basis on which the Parties were
to negotiate a delimitation agreement, but they were not agreed by the
Parties as applying to the subsequent judicial proceedings. At the same time
Ukraine acknowledges that some of these principles may be relevant as part
of the established rules of international law which the Court will apply but
not as part of any bilateral agreement.
38. Ukraine further argues that the 1949, 1963 and 1974 Procès-Verbaux and
the 1997 Additional Agreement do not constitute agreements mentioned in
Articles 74, paragraph 4, and 83, paragraph 4, of UNCLOS because they were
not agreements delimiting the continental shelf and exclusive economic
zones.
39. With regard to the declaration made by Romania with respect to Article
121 upon the signature and ratification of UNCLOS, Ukraine points out the
difference between a declaration and a reservation, and states that a
declaration “does not modify the legal effect of the treaty in question” and
does not call for any response from the other Contracting Parties. Thus,
according to Ukraine, the Court does not have to take into consideration
Romania’s declaration. As Ukraine
further notes, Romania claims that the reference to Article 121 of UNCLOS in
the Additional Agreement of 1997, considered to be one of the principles
applicable to the delimitation, demonstrates that Ukraine has thus “accepted
the applicability of the third paragraph of Article 121, as interpreted by
the Romanian declaration, to the present situation”; for Ukraine, this
assertion is groundless.
**
40. In deciding what will be a single maritime delimitation line, the Court
will duly take into account the agreements in force between the Parties.
Whether the Procès-Verbaux concluded between Romania and the USSR in 1949,
1963 and 1974 constitute agreements relating to the delimitation within the
meaning of Articles 74, paragraph 4, and 83, paragraph 4, of UNCLOS, depends
on the conclusion the Court will reach on Romania’s contention that they
establish the initial segment of the maritime boundary which the Court has
to determine. The Court considers the issue in Section 4 of this Judgment.
41. With respect to the principles listed in subparagraphs 4 (a) to (e) of
the Additional Agreement, the Court is of the view that the chapeau of that
paragraph providing that “[t]he Government of Ukraine and the Government of
Romania shall negotiate an Agreement on the delimitation of the continental
shelf and the exclusive economic zones in the Black Sea, on the basis of the
following principles and procedures” (emphasis added), suggests that these
principles were intended by the Parties to be taken into account in their
negotiations on the maritime delimitation, but do not constitute the law to
be applied by the Court. This does not necessarily mean that these
principles would per se be of no applicability in the present case; they may
apply to the extent that they are part of the relevant rules of
international law. The Court further notes that the principles listed in the
Additional Agreement were drawn up by the Parties in 1997. The entry into
force of UNCLOS as between the Parties in 1999 means that the principles of
maritime delimitation to be applied by the Court in this case are determined
by paragraph 1 of Articles 74 and 83 thereof.
42. Finally, regarding Romania’s declaration, quoted in paragraph 35 above,
the Court observes that under Article 310 of UNCLOS, a State is not
precluded from making declarations and statements when signing, ratifying or
acceding to the Convention, provided these do not purport to exclude or
modify the legal effect of the provisions of UNCLOS in their application to
the State which has made a declaration or statement. The Court will
therefore apply the relevant provisions of UNCLOS as interpreted in its
jurisprudence, in accordance with Article 31 of the Vienna Convention on the
Law of Treaties of 23 May 1969. Romania’s declaration as such has no bearing
on the Court’s interpretation.
4. Existing maritime delimitation between the Parties (effect of the
Procès-Verbaux of 1949,
1963 and 1974, as well as the 1949 and 1961 Treaties between Romania and the
USSR and
the 2003 Treaty between Romania and Ukraine)
43. The Court notes that the Parties disagree as to whether there already
exists an agreed maritime boundary around Serpents’ Island for all purposes.
They therefore disagree also on the starting-point of the delimitation to be
effected by the Court. To clarify the issues under discussion, the Court
must distinguish between these two different matters: firstly, the
determination of the starting-point of the delimitation as a function of the
land boundary and territorial sea boundary as already determined by the
Parties; and secondly, whether there exists an agreed maritime boundary
around Serpents’ Island and what is the nature of such a boundary, in
particular whether it separates the territorial sea of Ukraine from the
continental shelf and the exclusive economic zone of Romania, as claimed by
the latter and denied by the former.
*
44. Romania explains that a number of agreements were entered into between
Romania and the Soviet Union in relation to their boundary. The most
important is the General Procès-Verbal of 27 September 1949 (hereinafter
“the 1949 General Procès-Verbal”), which embodies the work of
the Joint Soviet-Romanian Commission for Delimitation of the State Border.
Romania states the boundary fixed in 1949 was confirmed in further
Soviet-Romanian Procès-Verbaux in 1963 and 1974 and in the 1949 and 1961
Border Treaties between Romania and the USSR. According to Romania, these
agreements, “which are binding on Ukraine by way of succession”, established
the first part of the maritime boundary along the 12-nautical-mile arc
around Serpents’ Island. Romania points out that in the 1997 Additional
Agreement and the 2003 State Border Régime Treaty, Ukraine expressly
affirmed the binding character of the border as agreed in the 1961 Border
Régime Treaty between Romania and the USSR which itself affirmed the
applicability of the 1949 Procès-Verbaux.
45. According to Romania, it is clear from the language of the 1949 General
Procès-Verbal that the Parties agreed that the boundary would follow the
exterior margin of the 12-mile marine boundary zone “surrounding” Serpents’
Island. Moreover, Romania continues, the Agreement effected an “all-purpose
delimitation” which was not limited to an initial short sector in the west.
46. Romania points out that on the sketch-map included in the individual
1949 Procès-Verbal relating to border sign 1439, as well as on map 134
attached to the 1949 General Procès-Verbal, the boundary is clearly drawn
along the 12-nautical-mile arc around Serpents’ Island until the edge of the
said maps. It asserts that the sketch-maps form an integral part of the
Procès-Verbaux and have to be given a corresponding weight. In its view,
regardless of whether they are to scale or are geographically accurate, the
sketch-maps confirm the meaning of the text of the Procès-Verbaux, namely
that the State boundary line extends beyond border sign 1439 along the
12-mile arc around Serpents’ Island, and that it has the same character
along its entire length.
47. Romania adds that, although the final point of the maritime boundary
between Romania and the USSR was not identified by specific geographical
co-ordinates, the extent of the agreed boundary is fixed by the language of
the 1949 General Procès-Verbal itself. The existence and acceptance of the
maritime boundary around Serpents’ Island following the 12-nautical-mile arc
until a point situated due east of the island is also confirmed by various
navigation charts issued after 1949 by the USSR and later Ukraine, as well
as by Romania, Bulgaria, France and Germany. These charts, Romania
maintains, consistently show the boundary as extending beyond the last point
depicted on map 134, and as having the same character along its entire
length up to a point due east of Serpents’ Island. Romania claims that the
position of this point, which it refers to as “Point X”, coincides on all of
these charts: it is located at approximately 45° 14' 20" N and 30° 29' 12"
E.
48. The last point of the boundary depicted on map 134 cannot be considered,
in Romania’s view, the final point of the boundary because the short segment
of the boundary from border sign 1439 up to the point where the drawing
terminates does not constitute a boundary “surrounding” Serpents’ Island as
envisaged in the text of the individual 1949 Procès-Verbal relating to
border sign 1439. Romania further argues that the blank space between the
endpoint of the line depicted on map 134 and the edge of the map is of no
relevance and cannot serve as an argument that this point is the final point
of the boundary. Map 134 was intended to depict the boundary between Points
1438 and 1439, and “the boundary sectors situated both before and beyond
point 1438 and 1439 are only partially depicted”.
49. According to Romania, the fact that there happens to be a close
coincidence between the endpoint of the boundary on map 134 and the point of
intersection of 12-nautical-mile territorial seas of Romania and Ukraine,
identified in the 2003 State Border Régime Treaty, does not prove that the
endpoint of the boundary on map 134 was a final point of the maritime
boundary agreed in 1949. While the endpoint of the boundary on map 134 is at
approximately 12 nautical miles from the Sulina dyke as it exists presently,
in 1949 (when the dyke was shorter) this point was at about 13.4 nautical
miles from the Romanian coast. No conclusion as to what was agreed in 1949
is to be drawn from coincidences resulting from the changing coastal
situation.
*
50. Ukraine disagrees that a maritime boundary along the 12-nautical-mile
arc around Serpents’ Island up to Point X was established by the agreements
between Romania and the USSR starting from 1949. It further argues that both
Parties acknowledge that the final point of the State border was established
by the 2003 State Border Régime Treaty, which means that maritime spaces
beyond this point had not previously been delimited.
51 In particular, Ukraine asserts that the text of the 1949 Procès-Verbaux
did not provide for an all-purpose maritime boundary, and neither did map
134. It notes that in accordance with the settlement recorded in the 1949
Procès-Verbaux the boundary line between Points 1437 and 1438 “is a true
State boundary between the territorial sea and/or internal waters of Romania
and the Soviet Union”. The boundary line running out to sea from Point 1438
in the direction of Point 1439 was “a true State boundary between the
territorial seas of Romania and the Soviet Union only as far out as a point
6 nautical miles from the baseline from which Romania’s territorial sea is
measured”. The boundary running further out to sea beyond the
6-nautical-mile point to Point 1439 and thereafter following the
12-nautical-mile arc around Serpents’ Island was the boundary between the
Soviet Union’s sovereign territorial sea and the adjacent high seas. Waters
beyond the territorial sea limits were high seas, which in 1949 meant for
Romania the waters beyond 6 nautical miles (since 1951, when Romania
extended the breadth of its territorial sea, beyond 12 nautical miles), and
for the Soviet Union waters beyond 12 nautical miles.
52. Ukraine argues that neither the 1949 Procès-Verbaux nor any other agreed
text identifies the status of the waters to the south of the short length of
agreed line along the 12-nautical-mile arc around Serpents’ Island. The line
agreed in 1949 could not have been intended by the Parties as a
line separating sea areas subject to distinctive régimes which at that time
simply did not exist, i.e., the continental shelf and exclusive economic
zone. Thus, Ukraine asserts that, while the 1949 as well as the 1963 and
1974 Procès-Verbaux are binding international agreements, they “are not
continental shelf or EEZ delimitation agreements”. It emphasizes that no
relevant text provides for the agreed boundary line to be an “all-purpose”
maritime boundary restricting Ukraine’s (and previously the Soviet Union’s)
rights “to any and all categories of maritime claims beyond that line”.
53. Ukraine contends that “[n]one of the relevant Procès-Verbaux nor any
other agreements say that the agreed boundary extends as far as Romania’s
alleged Point X”, nor give any co-ordinates for such a point. This
conclusion is evident from a reading of their texts.
Ukraine states that map 134 annexed to the 1949 General Procès-Verbal shows
that the relevant part of the 12-mile arc around Serpents’ Island extends on
the arc beyond Point 1439 but without however reaching the edge of the map
(there is a blank space). Ukraine maintains that nothing in the text
“suggests that the relevant part of the 12-nautical-mile arc around
Serpents’ Island extended to the south-east or east around Serpents’
Island”, as contended by Romania. According to Ukraine, map 134 was intended
specifically to show the boundary which had been agreed in the Procès-Verbal
to which it was attached, including the endpoint of the boundary. The final
point depicted on map 134 is “within a very few metres” of the point agreed
in the 2003 State Border Régime Treaty as the point of intersection of the
outer limits of Ukraine’s and Romania’s territorial seas (a difference of 93
m (north) and 219 m (east)).
54. As to the cartographic evidence produced by Romania, Ukraine replies
that none of the maps or sketch-maps contemporaneous with the 1949
Procès-Verbaux show that the agreed boundary extends as far as Romania’s
alleged Point X. Non-contemporaneous maps “are of little or no evidentiary
value as to what was agreed in 1949”. In particular, it notes that the maps
referred to by Romania are unreliable, cannot serve as a confirmation that
there exists an agreed boundary terminating at a point due east of Serpents’
Island (Point X) and that none of them “has any substantial legal value”.
**
55. The Court first notes that the Procès-Verbaux of 1949 resulted from the
work of the Joint Soviet-Romanian Border Commission implementing the
Protocol to Specify the Line of the State
Boundary between the People’s Republic of Romania and the Union of Soviet
Socialist Republics, signed in Moscow on 4 February 1948 (hereinafter “the
1948 Protocol”). It emerged from these negotiations that this Protocol was
primarily aimed at the modification of what had been agreed upon by the 1947
Paris Peace Treaty between the Allied and Associated Powers and Romania,
which confirmed that the Soviet-Romanian border was fixed “in accordance
with the Soviet-Romanian Agreement of June 28, 1940, and the
Soviet-Czechoslovak Agreement of June 29, 1945”.
56. The text of the Peace Treaty has no express provision relating to
Serpents’ Island. However, the 1948 Protocol stipulated where the national
borders between the States should lie as follows:
“1. The State border between Romania and the [USSR], indicated on the maps
annexed to the present Protocol/Annex I and II/, passes as follows:
(a) in accordance with Annex I:
[the description of the land boundary between Romania and the USSR];
(b) in accordance with Annex II:
along the River Danube, from Pardina to the Black Sea, leaving the islands
of Tǎtaru Mic, Daleru Mic and Mare, Maican and Limba on the side of the
[USSR], and the islands Tǎtaru Mare, Cernovca and Babina -- on the Romanian
side;
Serpents’ Island, situated in the Black Sea, eastwards from the Danube
mouth, is
incorporated into the [USSR].”
57. The Procès-Verbal of the Description of the State Boundary dated 27
September 1949, contains a complete description of the demarcation thus
effected in the form of the traversal of the State boundary line from
boundary mark No. 1052 to boundary mark No. 1439, covering both the land
territory in the national border area and the maritime territory up to Point
1439. It is the description of the border included in this Procès-Verbal,
carried forward into later agreements, that is of importance for present
purposes.
58. According to the General Procès-Verbal describing the whole State border
line, the boundary continues from a defined point near the end of the river
boundary between the two States (Point 1437) for a short distance along the
middle of the channel of the river and then roughly south south-easterly in
a straight line to a buoy anchored in water (Point 1438), at which point the
direction of the boundary line in the Black Sea changes and continues
roughly easterly in a straight line for about 12 miles to a beacon (Point
1439), the final point defined with co-ordinates stated by the Commission.
It is at the point at which the straight line from Point 1438 intersects
with “the exterior margin of the Soviet maritime boundary line, of 12 miles,
surrounding Serpents’ Island”. The document continues with this sentence:
“The State boundary line, from border sign No. 1439 (beacon), goes on the
exterior margin of the marine boundary zone of 12 miles, leaving Serpents’
Island on the side of the USSR.”
59. The border lines in the sketch-map included in the individual
Procès-Verbal of border Point 1439 (which includes almost the same
expression as that just quoted) uses the same symbols from the river mouth
(Point 1437) along the line through the coastal waters to Point 1438 and on
to Point 1439 and then beyond on the arc around Serpents’ Island, shown for
about 5 miles, to the point where the arc ends, at the margin of the
sketch-map included in that Procès-Verbal. The
expressions “CCCP” and “URSS” are used on the Soviet side and “PHP” and
“RPR” on the Romanian side, including the short section of the arc.
60. Wording almost identical to that in the 1949 Procès-Verbaux relating to
the line beyond Point 1439, set out at the end of paragraph 58 above, was
included in a 1954 Act, signed by authorized officers of the two countries,
relating to the boundary mark No. 1439.
61. In November 1949 and February 1961, Romania and the USSR concluded
treaties on the régime of their border, the latter treaty replacing the
former. Both defined the State border between them by reference to the
earlier agreements including the demarcation documents of September 1949. In
terms of the 1961 Treaty, a further demarcation process was carried out in
1963. While that process involved no modification of the border sign No.
1439 nor any sketch-map of it, the general description of the border
includes a passage similar to that in the earlier documents with the change
that “Soviet marine boundary zone” is replaced by the “territorial sea of
the USSR”: “From the border sign No. 1439 (beacon), the State boundary
passes on the exterior margin of the 12-mile territorial sea of the USSR,
leaving Serpents’ Island on the USSR side.”
62. Demarcation negotiations were conducted during the 1970s: in the 1974
general Procès-Verbal, the wording from the general 1963 Procès-Verbal was
reprised, while in the 1974 individual Procès-Verbal, the wording reverted
to that of the 1949 general Procès-Verbal. The 1974 individual Procès-Verbal
included a sketch-map with the same features in terms of the marking of the
various sections of the border and the use of the terms “CCCP/URSS” and
“PHP/RPR” as were used in the sketch-maps attached to the individual 1949
Procès-Verbal and the individual 1963 Procès-Verbal.
63. The final treaty in the series is the 2003 State Border Régime Treaty.
In the preamble, the Contracting Parties state their desire to develop
relations of collaboration on the basis of the principles and provisions in
their Treaty on Good Neighbourliness and Co-operation and in the Additional
Agreement providing principles and processes for delimiting the continental
shelf and
exclusive economic zone. The 2003 Treaty in Article 1 describes the State
border by reference to
the 1961 Romania-USSR Treaty “as well as . . . all the corresponding
demarcation documents, the maps of the State border . . . the protocols of
the border signs with their draft sketches . . . as well as the documents of
verifications of the State border line . . . in force on 16 July, 1990”, the
date of the adoption of the Declaration on the State Sovereignty of Ukraine.
The final part of the
description says that the boundary
“continues, from the border sign 1439 (buoy) on the outer limit of Ukraine’s
territorial waters around the Serpents’ Island, up to the point of 45° 05'
21" north latitude and 30° 02' 27" east latitude, which is the meeting point
with the Romanian State border passing on the outer limit of its territorial
sea. The territorial seas of the Contracting Parties measured from the
baselines shall permanently have, at the meeting point of their outer
limits, the width of 12 maritime miles.”
The Article concludes with these three sentences:
“If objective modifications due to natural phenomena which are not related
to human activities and that make it necessary for these co-ordinates to be
changed are noticed, the Joint Commission shall conclude new protocols.
The State border line, on its whole length, shall remain unchanged, unless
the Contracting Parties agree otherwise.
The elaboration of the new documents on the State border does not represent
a revision of the existent border between Romania and Ukraine.”
The definition of the boundary no longer includes the passage about the
boundary “passing” or “going on” the exterior margin of the maritime zone
“from” Point 1439. Rather the boundary continues from that point “up to” the
defined point.
64. In the view of the Court, the argument raised by Romania and based by it
on the words “from” and “goes on the exterior margin of the marine boundary
zone” cannot support Point X as
the endpoint of the agreed boundary (see paragraph 47 above). First, none of
the contemporaneous maps and sketch-maps arrive anywhere near Point X.
Second, the agreements are about “State borders”, an expression which does
not easily apply to areas beyond territory, including territorial seas.
Third, while, as Ukraine accepts, the 1949 and later agreements do not
specify the endpoint and Point 1439 is not the endpoint, the sketch-map
which is part of the Procès-Verbal for Point 1439 does indicate where that
endpoint might be; a clearer and more authoritative indication of that point
appears, if at a slightly different location, in map 134 which is to scale,
unlike the sketch-maps; the map is part of the General Procès-Verbal of 1949
and shows border signs 1438 and 1439 and only a short sector of the arc
beyond the latter. Finally, while other features on map 134 go all the way
to the margin of the map, the point at which the arc ends is short of the
margin of it (it is very close to the point where Romania’s prospective
12-mile territorial sea would intersect with the 12-mile arc around the
island). The gap between the end of the arc on that map and the 2003
co-ordinates is about 250 m.
65. A major problem with the Romanian thesis is the lack of any support in
the 1948-1949 processes and the resulting agreement for a point to the east
of Serpents’ Island. Apart from the argument based on the words themselves,
the only support for a point to the east of the island to be discerned in
the contemporary (1949) documentation is provided by the two sketch-maps and
map 134. However, they fall a long way short of Romania’s Point X; further,
they produce very different results from each other, from the sketch-map in
the Procès-Verbal for Point 1439 and, most importantly, from the end of the
arc which appears in the only relevant map in the 1949 Agreement -- map 134.
66. The Court concludes that in 1949 it was agreed that from the point
represented by border sign 1439 the boundary between Romania and the USSR
would follow the 12-mile arc around Serpents’ Island, without any endpoint
being specified. Under Article 1 of the 2003 State Border Régime Treaty the
endpoint of the State border between the Parties was fixed at the point of
intersection where the territorial sea boundary of Romania meets that of
Ukraine. The Court will
hereinafter refer to this point as “Point 1”.
*
67. The Court now turns to the question as to whether there exists an agreed
line which divides the territorial sea of Ukraine and the continental shelf
and the exclusive economic zone of Romania, as contended by the latter.
68. A preliminary issue concerns the burden of proof. As the Court has said
on a number of occasions, the party asserting a fact as a basis of its claim
must establish it (Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle
Rocks and South Ledge (Malaysia/Singapore), Judgment of 23 May 2008, para.
45; Application of the Convention on the Prevention and Punishment of the
Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Judgment of 26 February 2007, para. 204, citing Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984, p. 437, para.
101). Ukraine placed particular emphasis on the Court’s dictum in the case
concerning Territorial and Maritime Dispute between Nicaragua and Honduras
in the Caribbean sea (Nicaragua v. Honduras) that “[t]he establishment of a
permanent maritime boundary is a matter of grave importance and agreement is
not easily to be presumed” (Judgment of 8 October 2007, para. 253). That
dictum, however, is not directly relevant since in that case no written
agreement existed and therefore any implicit agreement had to be established
as a matter of fact, with the burden of proof lying with the State claiming
such an agreement to exist. In the present case, by contrast, the Court has
before it the 1949 Agreement and the subsequent agreements. Rather than
having to make findings of fact, with one or other party bearing the burden
of proof as regards claimed facts, the Court’s task is to interpret those
agreements. In carrying out that task, the Court must first focus its
attention on the terms of those documents including the associated
sketch-maps.
69. The Court notes that Articles 74, paragraph 4, and 83, paragraph 4, of
UNCLOS are relevant to Romania’s contention that a boundary delimiting the
exclusive economic zones and continental shelf beyond Point 1, and extending
around Serpents’ Island, was established by the 1949 instruments.
Paragraph 4 of Articles 74 and 83 provides that where there is an agreement
in force between the States concerned, questions relating to the
delimitation of the exclusive economic zone and the continental shelf “shall
be determined in accordance with the provisions of that agreement”.
The word “agreement” in paragraph 4 (as elsewhere in the Article) refers to
an agreement delimiting the exclusive economic zone (Article 74) or the
continental shelf (Article 83) referred to in paragraph 1. State practice
indicates that the use of a boundary agreed for the delimitation of one
maritime zone to delimit another zone is effected by a new agreement. This
typically occurs when States agree to apply their continental shelf boundary
to the exclusive economic zone. The agreement between Turkey and the USSR
applying the continental shelf boundary to the exclusive economic zone is
one such example. By the same token, if States intend that their territorial
sea boundary limit agreed earlier should later serve also as the
delimitation of the continental shelf and/or the exclusive economic zones,
they would be expected to conclude a new agreement for this purpose.
70. The 1949 instruments make no reference to the exclusive economic zone or
the continental shelf. Although in 1949 the Truman Proclamation and the
claims that it had begun to stimulate were widely known, neither Party
claimed a continental shelf in 1949 nor is there any indication in the case
file that either was preparing to do so. The International Law Commission
(ILC) had yet to begin its work on the law of the sea which ultimately led
to the 1958 Convention on the Continental Shelf and widespread acceptance of
that concept. The concept of an exclusive economic zone in international law
was still some long years away. The only agreement between the Parties
expressly dealing with delimitation of the exclusive economic zone and the
continental shelf is the 1997 Additional Agreement. It does not establish a
boundary but rather a process for arriving at one, which is reaching its
culmination in these proceedings. The detailed provisions regarding factors
to be taken into account during the negotiations make no reference to an
existing agreement. There was no agreement in 1949 delimiting the exclusive
economic zone or the continental shelf within the meaning of Articles 74 and
83 of UNCLOS.
71. A further issue that may arise under international law and Article 311,
paragraph 2, of UNCLOS is whether the USSR could have renounced in 1949 any
rights which it might then or later have had over waters beyond the
territorial sea. There is no express language of renunciation in the 1949
Treaty on the part of the USSR apart from its agreement to a State frontier
with Romania. The express mention of a State frontier alludes to sovereignty
which includes the territorial sea. The question is whether there is an
implied prospective renunciation by the USSR, in a geographical sense with
respect to the area beyond 12 miles, and in a legal sense with respect to
zones not of sovereignty but of functional competence beyond the territorial
sea.
72. Romania proffers a variety of maps by Soviet, Ukrainian and other
sources, mostly prepared long after the conclusion of the 1949 instruments.
They show hooks or loops around Serpents’ Island with varying lengths and
markings, all extending beyond the point where the 12-mile territorial seas
of the Parties meet. Since in the circumstances there is no question of
these maps themselves evidencing a new agreement or an estoppel, the issue
is whether any of them evince a correct understanding of the meaning of the
1949 Treaty.
73. The USSR acquired Serpents’ Island in the context of the overall
territorial settlement that emerged following the Second World War. A
primary USSR objective was to consolidate and stabilize the territorial
settlement by treaty with Romania, including the USSR’s acquisition of
Serpents’ Island.
74. So far as the territorial sea is concerned, the Court notes that a
12-mile zone around Serpents’ Island would have been consistent with the
12-mile zone that the USSR was claiming generally for its territorial sea.
75. This understanding of the effect of the textual references to the arc in
the 1949 instruments is set forth in Article 1 of the 2003 State Border
Régime Treaty. That Treaty expressly contemplates the possibility of future
agreed modifications of the co-ordinates of the territorial sea boundary due
to natural phenomena which are not related to human activities, and provides
that “[t]he territorial seas of the Contracting Parties measured from the
baselines shall permanently have, at the meeting point of their outer
limits, the width of 12 maritime miles”. Thus, the 12-mile arc around
Serpents’ Island will never be penetrated by Romania’s territorial sea, no
matter what changes occur in its coastline or baselines.
The Court observes further that the 12-mile arc around Serpents’ Island is
shown on a map dealing with the State border; this suggests that that arc
represents simply the seaward limit of the territorial sea. Recognition by
the USSR in the 1949 instruments that its State border followed the outer
limit of its territorial sea around Serpents’ Island does not signify that
it thereby gave up any entitlements to maritime areas beyond that zone.
76. The Court concludes that the 1949 instruments related only to the
demarcation of the State border between Romania and the USSR, which around
Serpents’ Island followed the 12-mile limit of the territorial sea. The USSR
did not forfeit its entitlement beyond the 12-mile limit of its
territorial sea with respect to any other maritime zones. Consequently,
there is no agreement in force between Romania and Ukraine delimiting
between them the exclusive economic zone and the continental shelf.
5. Relevant coasts
77. The title of a State to the continental shelf and to the exclusive
economic zone is based on the principle that the land dominates the sea
through the projection of the coasts or the coastal fronts. As the Court
stated in the North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands) cases, “the land
is the legal source of the power which a State may exercise over territorial
extensions to seaward” (Judgment, I.C.J. Reports 1969, p. 51, para. 96). In
the Continental Shelf (Tunisia/Libya Arab Jamahiriya) case, the Court
observed that “the coast of the territory of the State is the decisive
factor for title to submarine areas adjacent to it” (Judgment, I.C.J.
Reports 1982, p. 61, para. 73). It is therefore important to determine the
coasts of Romania and of Ukraine which generate the rights of these
countries to the continental shelf and the exclusive economic zone, namely,
those coasts the projections of which overlap, because the task of
delimitation consists in resolving the overlapping claims by drawing a line
of separation of the maritime areas concerned.
78. The role of relevant coasts can have two different though closely
related legal aspects in relation to the delimitation of the continental
shelf and the exclusive economic zone. First, it is necessary to identify
the relevant coasts in order to determine what constitutes in the specific
context of a case the overlapping claims to these zones. Second, the
relevant coasts need to be ascertained in order to check, in the third and
final stage of the delimitation process, whether any
disproportionality exists in the ratios of the coastal length of each State
and the maritime areas falling either side of the delimitation line.
79. The Court will begin by briefly setting out the Parties’ positions as to
their respective relevant coasts (see sketch-maps Nos. 2 and 3).
5.1. The Romanian relevant coast
80. Romania invokes the principle that the relevant coast is the coast that
generates the entitlement to maritime zones: that is, the coast whose
projection extends over the area in question, which is the area of overlap
between the zones generated by the coasts of the two States, so as to give
the coastal State the basis for its claim to the area in question. It
explains that “the criterion for determining the relevance of any given
coast is the actual relation of adjacency or oppositeness between the coasts
of the parties, as well as the ability of those coasts to generate
overlapping entitlements”.
81. Romania contends that its coast is composed of two distinct segments: a
short and more or less straight coast from the last point of the river
border with Ukraine to the southern extremity of the Sacalin Peninsula, and
a longer slightly concave coast from the extremity of the Sacalin Peninsula
to the border with Bulgaria. Romania states that the only major features in
this stretch of coast are the Sulina dyke and the mouth of the St. George
arm of the Danube, located slightly to the north of the Sacalin Peninsula.
The Sacalin Peninsula, which forms a narrow promontory, is the southern
limit of this section. From that peninsula, “the coast proceeds in a
westerly direction until it reaches the Razim Lake, a brackish Romanian lake
separated from the sea by a narrow strip of land”. The coast then gradually
curves to the south, and proceeds in a broadly southerly direction until it
reaches the land border with Bulgaria, south of Vama Veche.
82. In Romania’s view, the whole Romanian coast is relevant. In particular,
the coastal segment situated between the last point of the land/river border
between Romania and Ukraine and the outer extremity of the Sacalin Peninsula
is relevant for both sectors of the delimitation area characterized
respectively by situations of coastal adjacency and coastal oppositeness.
The segment situated south of the Sacalin Peninsula to the last point of the
Romanian/Bulgarian land
border is relevant only for the sector of the delimitation area
characterized by a coastal situation of oppositeness.
83. The total length of its relevant coast, according to Romania, is 269.67
km (baselines
204.90 km).
*
Sketch-Map No. 2: The Relevant
Coasts and Delimitation Area According to Romania
Sketch-Map No. 3: The Relevant
Coasts and Delimitation Area According to Ukraine
84. Ukraine notes that Romania divides its coast into two segments: first of
all, from the land boundary with Ukraine down to the Sacalin Peninsula, and
secondly, from that peninsula southwards to the boundary with Bulgaria.
85. Ukraine further contends that “in constructing its claim line, Romania
has double counted a significant part of its coast represented by the
northern sector of that coast”. According to Ukraine, Romania treats the
northern sector of its coast as the relevant “adjacent coast” and then uses
its entire coast (i.e., including the northern sector) as the relevant coast
for the purposes of delimitation between the “opposite coasts” -- “in other
words, it double counts the 70 km long stretch of its northern coast” as
relevant for both the “adjacent” maritime boundary and the “opposite”
boundary.
In response, Romania explains that, while its coast has a role to play both
in relation to adjacent coasts and to opposite coasts, in the calculation of
the total length of its relevant coast, each of the segments of its coast is
counted only once.
86. While Ukraine expresses the view that “significant portions of Romania’s
coast actually face south or south-east”, it states that it is nonetheless
prepared to treat all of Romania’s coast as a “relevant coast” for purposes
of the present delimitation because the “projections from each Party’s coast
generate overlapping maritime entitlements and EEZ entitlements in this part
of the Black Sea”.
87. The total length of Romania’s coast, according to Ukraine, is
approximately 258 km taking into account the sinuosities along that coast.
If the coast is measured more generally according to its coastal front, then
the length is 185 km. If Romania’s coast is measured by reference to
Romania’s system of straight baselines, its length would be approximately
204 km.
**
88. The Court notes that the Parties are in agreement that the whole
Romanian coast constitutes the relevant coast for the purposes of
delimitation. The first segment of the Romanian coast, from the last point
of the river boundary with Ukraine to the Sacalin Peninsula, has a dual
characteristic in relation to Ukraine’s coast; it is an adjacent coast with
regard to the Ukrainian coast lying to the north, and it is an opposite
coast to the coast of the Crimean Peninsula. The whole coast of Romania
abuts the area to be delimited. Taking the general direction of its coast
the length of the relevant coast of Romania is approximately 248 km (see
sketch-map No. 4).
5.2. The Ukrainian relevant coast
89. The Court now turns to the issue of the Ukrainian relevant coast for the
purpose of this delimitation. The Parties take different views on it.
Sketch-Map No. 4: The Relevant
Coasts as Identified by the Court
90. Romania asserts that the Ukrainian coast is characterized by a number of
deep indentations and reverses its course sharply several times, with
segments facing one another. From the land/river border with Romania, the
Ukrainian coast proceeds broadly northwards for a short distance and then in
a north-easterly direction until the Nistru/Dniester Firth. The point where
its
southern bank meets the coast (referred to by Romania as “Point S”),
according to Romania, marks the end of that part of Ukraine’s coast which
has a relation of adjacency with the Romanian coast. From this point, the
Ukrainian coast changes direction proceeding in a north-north-easterly
direction until it reaches Odessa. At Odessa it initially goes north and
then turns eastwards until the coast reaches the Dnieper Firth. From here
the general direction of the coast is first a southerly one, and then, from
the bottom of the Yahorlyts’ka Gulf, the direction is an easterly one, until
it comes to the bottom of the Karkinits’ka Gulf. The coast then turns back
on itself sharply, extending south-westwards along the southern coast of the
Karkinits’ka Gulf, until it reaches Cape Tarkhankut. The last sector
comprises the coast of Crimea between Cape Tarkhankut and Cape Sarych, which
is concave, its general direction being interrupted by a significant
protrusion, the western-most point of which is Cape Khersones. According to
Romania, the Ukrainian coast is composed of eight distinct segments,
determined by marked changes in the direction of the coast.
91. Romania argues that the segments of the Ukrainian coast situated to the
north of the line running from Point S to Cape Tarkhankut do not project on
the area of delimitation or “have a relationship of either adjacency or
oppositeness with the Romanian coast” and therefore are irrelevant for the
delimitation. In particular Romania maintains that the coastline of the
Karkinits’ka Gulf, immediately north of the Crimean peninsula, should not be
counted as a relevant coast, nor “can a closing line drawn across or
anywhere within the Karkinits’ka Gulf be treated as a surrogate for its
irrelevant coast”. Romania adds that such projections as are made by this
northern coast are in fact overtaken by the westward projections of the
Ukrainian coast from Cape Tarkhankut to Cape Sarych.
92. Romania states that “Serpents’ Island does not form part of the coastal
configuration of the Parties; it constitutes merely a small maritime feature
situated at a considerable distance out to sea from the coasts of the
Parties”.
93. Thus, in Romania’s view, the relevant Ukrainian coast runs between the
last point of the land/river border between Romania and Ukraine and Point S,
and on the western-facing coast of the Crimean peninsula it runs between
Cape Tarkhankut and Cape Sarych.
The total length of the relevant Ukrainian coast, as perceived by Romania,
is 388.14 km (baselines 292.63 km).
*
94. Ukraine contends that its own relevant coast is comprised of three
distinct sectors each of which generates an entitlement to a continental
shelf and an exclusive economic zone in the area subject to delimitation.
The first sector extends from the border with Romania until a point located
just north of Odessa. In the second sector, north of Odessa, the Ukrainian
coast turns to the east and comprises the south-facing littoral along the
north-western part of the Black Sea. The coast then extends into the
Karkinits’ka Gulf. The third sector comprises the western coast of the
Crimean Peninsula from the easternmost point of the Karkinits’ka Gulf to
Cape Sarych. (Both Parties agree that Ukraine’s coast east of Cape Sarych is
not relevant to the present dispute.) This portion of Ukraine’s coast is
characterized by the indentation created by the Karkinits’ka Gulf and by the
less pronounced Gulf of Kalamits’ka. All three sectors of Ukraine’s coast
generate 200-nautical-mile entitlements which extend over the entire area to
be delimited with Romania.
95. Ukraine disagrees that the part of its coast from Point S to Cape
Tarkhankut (630 km long) should be excluded from the relevant coast of
Ukraine, as claimed by Romania. It affirms that the seaward extensions of
the Ukrainian coastal fronts, including the part of Ukraine’s coast between
Point S and Cape Tarkhankut, “converge in a southerly direction”. Ukraine
points out that its south-facing coast, which Romania seeks to suppress,
“generates a 200-nautical-mile entitlement throughout the area of concern in
this case”. Ukraine adds that its entire south-facing
coast generates “a 200 nautical mile continental shelf/EEZ entitlement that
extends well south of
the parallel of latitude of the Romanian/Bulgarian border”, i.e., projecting
into the area subject to
delimitation with Romania. Thus Ukraine contends that its coast from Point S
to Cape Tarkhankut is relevant for the purposes of the delimitation between
the Parties.
96. Ukraine claims that Serpents’ Island “forms part of the geographical
context and its coast constitutes part of Ukraine’s relevant coasts”.
97. Ukraine concludes that the total length of its relevant coast is 1,058
km (coastal façade 684 km; baselines 664 km).
**
98. The Court notes that both Parties consider the coast of the Crimean
Peninsula between Cape Tarkhankut and Cape Sarych, as well as the Ukrainian
coast from their common territorial boundary running for a short distance in
a north and subsequently in a north-easterly direction until the
Nistru/Dniester Firth (Romania designates this point as Point S) as the
relevant Ukrainian coast. Their disagreement concerns the coast extending
from this point until Cape Tarkhankut.
99. The Court, in considering the issue in dispute, would recall two
principles underpinning its jurisprudence on this issue: first, that the
“land dominates the sea” in such a way that coastal projections in the
seaward direction generate maritime claims (North Sea Continental Shelf
(Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment,
I.C.J. Reports 1969, p. 51, para. 96); second, that the coast, in order to
be considered as relevant
for the purpose of the delimitation, must generate projections which overlap
with projections from the coast of the other party. Consequently “the
submarine extension of any part of the coast of one Party which, because of
its geographic situation, cannot overlap with the extension of the coast of
the other, is to be excluded from further consideration by the Court”
(Continental Shelf (Tunisia/Libyan Arab Jamahiriya), Judgment, I.C.J.
Reports 1982, p. 61, para. 75).
100. The Court therefore cannot accept Ukraine’s contention that the coasts
of Karkinits’ka Gulf form part of the relevant coast. The coasts of this
gulf face each other and their submarine extension cannot overlap with the
extensions of Romania’s coast. The coasts of Karkinits’ka Gulf do not
project in the area to be delimited. Therefore, these coasts are excluded
from further consideration by the Court. The coastline of Yahorlyts’ka Gulf
and Dnieper Firth is to be excluded for the same reason.
It is to be noted that the Court has drawn a line at the entrance of
Karkinits’ka Gulf from Cape Priboiny (which is the north-western tip of
Tarkhankuts’ky Peninsula, slightly north of Cape Tarkhankut) to the point
that marks the eastern end of the portion of the Ukrainian northern coast
that faces the area to be delimited. This point (whose co-ordinates are
approximately 46° 04' 38'' N and 32° 28' 48'' E) lies at the intersection of
the meridian passing through Cape Priboiny with the northern coast of
Karkinits’ka Gulf, east of Zaliznyy Port. The Court has found it useful to
do so with respect to such a significant feature as Karkinits’ka Gulf, in
order to make clear both what coasts will not be under consideration and
what waters will not be regarded as falling within the relevant area.
However, the Court does not include this line in the calculation of the
total length of the Ukrainian relevant coasts, as the line “replaces” the
coasts of Karkinits’ka Gulf which, again, do not themselves project on the
area to be delimited and thus do not generate any entitlement to the
continental shelf and the exclusive economic zone in that area.
Consequently, the line does not generate any entitlement.
101. As for the remaining sectors of the Ukrainian coast between Point S and
Cape Tarkhankut, the Court observes that the north-western part of the Black
Sea (where the delimitation is to be carried out) in its widest part
measures slightly more than 200 nautical miles and its extent from north to
south does not exceed 200 nautical miles. As a result of this geographical
configuration, Ukraine’s south-facing coast generates projections which
overlap with the maritime projections of the Romanian coast. Therefore, the
Court considers these sectors of Ukraine’s coast as relevant coasts (see
sketch-map No. 4).
102. The coast of Serpents’ Island is so short that it makes no real
difference to the overall length of the relevant coasts of the Parties. The
Court will later examine whether Serpents’ Island is of relevance for the
choice of base points (see paragraph 149 below).
103. The length of the relevant coast of Ukraine is approximately 705 km.
**
104. The Court notes that on the basis of its determination of what
constitutes the relevant coasts, the ratio for the coastal lengths between
Romania and Ukraine is approximately 1:2.8.
105. The second aspect mentioned by the Court in terms of the role of
relevant coasts in the context of the third stage of the delimitation
process (see paragraph 78 above) will be dealt with
below in Section 11.
6. Relevant maritime area
106. Romania maintains that the relevant area in the north is bordered by
the line running from Point S to Cape Tarkhankut. In the south, the area is
bordered by the line equidistant between the adjacent Romanian and Bulgarian
coasts, the median line between the opposite Romanian and Turkish coasts and
the delimitation line agreed upon by the USSR and Turkey, to which agreement
Ukraine has succeeded. In the south-east the area is bordered by the
meridian uniting Cape Sarych with the delimitation boundary between Ukraine
and Turkey. In the west and in the east the limits of the area are formed by
the Romanian and Ukrainian relevant coasts.
107. According to Romania, the relevant area means all of the waters
generated by projections from the relevant coasts, whether or not claimed by
the other State. Romania states that there are three points of disagreement
between the Parties as to the relevant area. First, Romania asserts that the
coasts looking on to the area north of the line between Point S and Cape
Tarkhankut are all Ukrainian, and that none of them are relevant to the
delimitation. Second, it states that the south-western limit is represented
by the equidistance line between the adjacent Romanian and Bulgarian coasts
and that to move the line south of this equidistance line could prejudge
potential
interests of Bulgaria in this maritime area. Third, Romania claims that the
south-eastern triangle lying between Ukraine and Turkey also forms part of
the relevant area because it is within a 200-mile projection from the
Romanian coasts (see sketch-map No. 2).
*
108. Ukraine contends that the western limit of the relevant area
corresponds to the Romanian coastline between the land boundaries with
Bulgaria and Ukraine and the stretch of the Ukrainian coast extending from
the border with Romania until a point located just north of Odessa. In the
north, the relevant area is bordered by the south-facing Ukrainian coast. In
the east, the relevant area is bordered by the west-facing coast of the
Crimean Peninsula terminating at Cape Sarych. The southern limit of the
relevant area is a line drawn perpendicular from the mainland coast from the
point where the Bulgarian/Romanian land border reaches the Black Sea until a
point between the Romanian and Ukrainian coasts where the interests of third
States potentially come into play. This point is then connected to Cape
Sarych by a straight line which represents the south-eastern limit of the
relevant area.
109. Ukraine contends, as to the three points of disagreement, that all of
its south-facing coast between Point S and Cape Tarkhankut generates
maritime entitlements to a distance of 200 nautical miles and that this
maritime area, accordingly, forms part of the relevant area. Ukraine further
argues that the relevant area should include a sliver of maritime area
situated between the hypothetical equidistance line between Romania and
Bulgaria and a straight line connecting the endpoint of the
Romanian/Bulgarian land boundary and a potential tripoint with Bulgaria
and/or Turkey. Finally, according to Ukraine, a large triangle lying between
Ukraine and Turkey has already been subject to a prior delimitation between
the former Soviet Union and Turkey to which Ukraine has succeeded and
therefore does not form part of the relevant area (see sketch-map No. 3).
**
110. The Court observes that the legal concept of the “relevant area” has to
be taken into account as part of the methodology of maritime delimitation.
In the first place, depending on the configuration of the relevant coasts in
the general geographical context and the methods for the construction of
their seaward projections, the relevant area may include certain maritime
spaces and exclude others which are not germane to the case in hand.
Secondly, the relevant area is pertinent to checking disproportionality.
This will be done as the final phase of the methodology. The purpose of
delimitation is not to apportion equal shares of the area, nor indeed
proportional shares. The test of disproportionality is not in itself a
method of delimitation. It is rather a means of checking whether the
delimitation line arrived at by other means needs adjustment because of a
significant disproportionality in the ratios between the maritime areas
which would fall to one party or other by virtue of the delimitation line
arrived at by other means, and the lengths of their respective coasts.
111. The Court further observes that for the purposes of this final exercise
in the delimitation process the calculation of the relevant area does not
purport to be precise and is approximate. The object of delimitation is to
achieve a delimitation that is equitable, not an equal apportionment of
maritime areas (North Sea Continental Shelf (Federal Republic of
Germany/Denmark; Federal Republic of Germany/Netherlands), Judgment, I.C.J.
Reports 1969 p. 22, para. 18; Maritime Delimitation in the Area between
Greenland and Jan Mayen (Denmark v. Norway), Judgment, I.C.J Reports 1993,
p. 67, para. 64).
112. The Court notes that the delimitation will occur within the enclosed
Black Sea, with Romania being both adjacent to, and opposite Ukraine, and
with Bulgaria and Turkey lying to the south. It will stay north of any area
where third party interests could become involved.
113. As for the area in the north disputed by the Parties as a relevant
area, as explained above (see paragraph 101) the Court has taken the view
that the section of the Ukrainian coast situated to the north of the line
running from Point S to Cape Tarkhankut is a relevant coast for the purpose
of the delimitation exercise. Accordingly, the area lying immediately south
of this coast,
but excluding Karkinits’ka Gulf at the mouth of which the Court has drawn a
line (see paragraph 100 above), falls within the delimitation area.
114. The Court turns now to the southern limit of the relevant area. The
Parties hold different views as to whether the south-western and
south-eastern “triangles” should be included in the relevant area (see
paragraphs 107 and 109 above and sketch-map Nos. 2 and 3). The Court notes
that in both these triangles the maritime entitlements of Romania and
Ukraine overlap. The Court is also aware that in the south-western triangle,
as well as in the small area in the western corner of the south-eastern
triangle, entitlements of third parties may come into play. However where
areas are included solely for the purpose of approximate identification of
overlapping entitlements of the Parties to the case, which may be deemed to
constitute the relevant area (and which in due course will play a part in
the final stage testing for disproportionality), third party entitlements
cannot be affected. Third party entitlements would only be relevant if the
delimitation between Romania and Ukraine were to affect them.
In light of these considerations, and without prejudice to the position of
any third State regarding its entitlements in this area, the Court finds it
appropriate in the circumstances of this case to include both the
south-western and the south-eastern triangles in its calculation of the
relevant area (see sketch-map No. 5).
7. Delimitation methodology
115. When called upon to delimit the continental shelf or exclusive economic
zones, or to draw a single delimitation line, the Court proceeds in defined
stages.
116. These separate stages, broadly explained in the case concerning
Continental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment, I.C.J. Reports
1985, p. 46, para. 60), have in recent decades been specified with
precision. First, the Court will establish a provisional delimitation line,
using methods that are geometrically objective and also appropriate for the
geography of the area in which the delimitation is to take place. So far as
delimitation between adjacent coasts is concerned, an equidistance line will
be drawn unless there are compelling reasons that make this unfeasible in
the particular case (see Territorial and Maritime Dispute between Nicaragua
and Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8
October 2007, para. 281). So far as opposite coasts are concerned, the
provisional delimitation line will consist of a median line between the two
coasts. No legal consequences flow from the use of the terms “median line”
and “equidistance line” since the method of delimitation is the same for
both.
117. Equidistance and median lines are to be constructed from the most
appropriate points on the coasts of the two States concerned, with
particular attention being paid to those protuberant coastal points situated
nearest to the area to the delimited. The Court considers elsewhere (see
paragraphs 135-137 below) the extent to which the Court may, when
constructing a single-purpose delimitation line, deviate from the base
points selected by the parties for their territorial seas. When construction
of a provisional equidistance line between adjacent States is called for,
the Court will have in mind considerations relating to both parties’
coastlines when choosing its own base points for this purpose. The line thus
adopted is heavily dependent on the physical geography and the most seaward
points of the two coasts.
118. In keeping with its settled jurisprudence on maritime delimitation, the
first stage of the Court’s approach is to establish the provisional
equidistance line. At this initial stage of the construction of the
provisional equidistance line the Court is not yet concerned with any
relevant
circumstances that may obtain and the line is plotted on strictly
geometrical criteria on the basis of objective data.
119. In the present case the Court will thus begin by drawing a provisional
equidistance line between the adjacent coasts of Romania and Ukraine, which
will then continue as a median line between their opposite coasts.
120. The course of the final line should result in an equitable solution
(Articles 74 and 83 of UNCLOS). Therefore, the Court will at the next,
second stage consider whether there are factors calling for the adjustment
or shifting of the provisional equidistance line in order to achieve an
equitable result (Land and Maritime Boundary between Cameroon and Nigeria
(Cameroon v.
Sketch-Map No. 5: The
Delimitation Area as Identified by the Court
Nigeria: Equatorial Guinea intervening), Judgment, I.C.J. Reports 2002, p.
441, para. 288). The Court has also made clear that when the line to be
drawn covers several zones of coincident jurisdictions, “the so-called
equitable principles/relevant circumstances method may usefully be applied,
as in these maritime zones this method is also suited to achieving an
equitable result” (Territorial and Maritime Dispute between Nicaragua and
Honduras in the Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October
2007, para. 271).
121. This is the second part of the delimitation exercise to which the Court
will turn, having first established the provisional equidistance line.
122. Finally, and at a third stage, the Court will verify that the line (a
provisional equidistance line which may or may not have been adjusted by
taking into account the relevant circumstances) does not, as it stands, lead
to an inequitable result by reason of any marked disproportion between the
ratio of the respective coastal lengths and the ratio between the relevant
maritime area of each State by reference to the delimitation line (see
paragraphs 214-215). A final check for an equitable outcome entails a
confirmation that no great disproportionality of maritime areas is evident
by comparison to the ratio of coastal lengths.
This is not to suggest that these respective areas should be proportionate
to coastal lengths --as the Court has said “the sharing out of the area is
therefore the consequence of the delimitation, not vice versa” (Maritime
Delimitation in the Area between Greenland and Jan Mayen (Denmark v.
Norway), Judgment, I.C.J. Reports 1993, p. 67, para. 64).
8. Establishment of the provisional equidistance line
8.1. Selection of base points
123. Romania contends that the base points to take into account in
constructing the provisional equidistance line between the adjacent coasts
of Romania and Ukraine are, on the Romanian coast, the seaward end of the
Sulina dyke, and on the Ukrainian coast, a point on the island of Kubansky
and Cape Burnas. In addition, in Romania’s view, the base points on the
opposite coasts of Romania and Ukraine are, on the Romanian coast, the
seaward end of the Sulina dyke and the outer end of the Sacalin Peninsula,
and on the Ukrainian coast, Capes Tarkhankut and Khersones. Romania points
out that the Sacalin Peninsula and the most seaward point of the Sulina dyke
are among the relevant points notified by Romania to the United Nations
under Article 16 of UNCLOS for measuring the breadth of the territorial sea.
124. Romania argues that no account should be taken of Serpents’ Island as a
base point for the purposes of constructing the provisional equidistance
line. It claims that Serpents’ Island is a rock incapable of sustaining
human habitation or economic life of its own, “therefore having no exclusive
economic zone or continental shelf, as provided for in Article 121 (3) of
the 1982 UNCLOS”. Romania further points out that when Ukraine notified the
United Nations of the co-ordinates of its baselines used for measuring the
breadth of its territorial sea, it made no reference at all to Serpents’
Island. In addition, it considers that using this island as a base point
would result in an inordinate distortion of the coastline.
*
125. Ukraine contends for its part that the relevant base points for the
construction of the provisional equidistance line are situated on the
baselines of each of the Parties from which the breadth of their territorial
sea is measured. Thus, on the Romanian coast, Ukraine has used the base
points situated on the Sulina dyke and the Sacalin Peninsula. On its own
coasts, it has taken as a reference “the base points situated on Serpents’
Island” and the tip of Cape Khersones. Ukraine indicates, however, that
Romania’s use of a point situated at the seaward tip of the Sulina dyke has
a huge effect on Romania’s provisional equidistance line. It also considers
that “[t]he notion that a protruding, man-made structure can be given a full
effect for purposes of plotting the provisional equidistance line, while a
natural feature -- an island [Serpents’ Island] -- can simply be ignored
does not comport with a proper application of the law or with equitable
principles”.
126. Ukraine maintains that because Serpents’ Island has a coast, it follows
that it has a baseline. As a result, it states that there are base points on
that baseline that can be used for plotting the provisional equidistance
line. It points out that, contrary to what Romania claims, “normal”
baselines, defined as the low-water mark around the coast, do not have to be
notified to the United Nations, as straight baselines have to be. Ukraine
therefore contends that given its proximity to the Ukrainian mainland,
Serpents’ Island should clearly be taken into account as one of the relevant
base points for the construction of the provisional equidistance line. It
notes that the belt of territorial sea which surrounds Serpents’ Island
partly overlaps with the area of territorial sea bordering the Ukrainian
mainland. Consequently, “[t]his island therefore represents what is commonly
termed a coastal island”.
**
127. In this stage of the delimitation exercise, the Court will identify the
appropriate points on the Parties’ relevant coast or coasts which mark a
significant change in the direction of the coast, in such a way that the
geometrical figure formed by the line connecting all these points reflects
the general direction of the coastlines. The points thus selected on each
coast will have an effect on the provisional equidistance line that takes
due account of the geography.
128. The Court observes that in this instance, the geography shows that the
capacity of the coasts to generate overlapping titles indicates the
existence of two areas: in one case, the coasts are adjacent; in the other,
they are opposite. In practice, the first conclusion which the Court draws
from this is that, on the Romanian coast, the significant base points from
which the equidistance line and the median line must be established are the
same, since this coast is both adjacent and opposite to the Ukrainian coast.
The second conclusion is that, as the Ukrainian coast consists of two
portions -- one adjacent to the Romanian coast, the other opposite to it --
the base points to take into account must be defined separately, according
to whether the adjacent or opposite portion is concerned. The third
conclusion is the identification of a turning-point on the equidistance line
where the effects of adjacency give way to those of the coasts on the
opposite side, resulting in a change in the direction of the line. Lastly,
the Court will need to consider the relevance or otherwise of Serpents’
Island in terms of the choice of base points.
129. On the Romanian coast from the border with Bulgaria, the Court will
first consider the Sacalin Peninsula. This is the point at which the
direction followed by the Romanian coast from the border between Romania and
Bulgaria turns almost perpendicularly towards the north. At this place, the
coasts of Romania and Ukraine are opposite one another. The significance of
the Sacalin Peninsula in terms of the choice of base points is questioned by
Ukraine, which describes it as a spit of sand. However, the Court observes
that the peninsula belongs to the landmass and forms part of the Romanian
mainland: its permanent uncovering at high tide is not contested. The
geomorphological features of the peninsula and its possibly sandy nature
have no bearing on the elements of its physical geography which are relevant
for maritime delimitation. For these reasons, the Court considers it
appropriate, for the purpose of establishing the provisional equidistance
line, to use a base point on the Sacalin Peninsula (44° 50' 28"N and 29° 36'
52"E), which happens to correspond to the point notified by Romania to the
United Nations as a base point pursuant to Article 16 of UNCLOS.
130. The Court will next consider whether any point on the Romanian coast of
the Musura Bay may serve as a base point. The southern headland of this bay
is the most prominent point of the Romanian coast in the direction of the
Crimea and is also situated in the area where the coasts of the two States
are adjacent. These two characteristics prompt its selection for the purpose
of establishing the provisional equidistance line. However, because of the
construction on that southern headland of a 7.5 km-long dyke out to sea,
which accordingly extends this feature, it is necessary to choose either the
seaward end of the dyke or the end where it adjoins the mainland.
131. In this respect, the Court observes that the geometrical nature of the
first stage of the delimitation exercise leads it to use as base points
those which the geography of the coast identifies as a physical reality at
the time of the delimitation. That geographical reality covers not only the
physical elements produced by geodynamics and the movements of the sea, but
also any other material factors that are present.
132. In light of the fact that the breadth of the exclusive economic zone
and the continental shelf is measured from the baselines from which the
territorial sea is measured (UNCLOS, Arts. 57 and 76), the Court first has
to consider whether the Sulina dyke could be regarded as “permanent harbour
works which form an integral part of the harbour system”, within the meaning
of Article 11 of UNCLOS, which Article the Court recalls concerns the
delimitation of the territorial sea. It reads as follows:
“For the purpose of delimiting the territorial sea, the outermost permanent
harbour works which form an integral part of the harbour system are regarded
as forming part of the coast. Off-shore installations and artificial islands
shall not be considered as permanent harbour works.”
133. The permanent nature of the Sulina dyke not having been questioned, the
Court will have to consider whether this structure can be described as
“harbour works” which form “an integral part of the harbour system”. The
term “works” denotes a combination of apparatus, structures and facilities
installed for a specific purpose. The expression “harbour works” “which form
an integral part of the harbour system” is not defined in the Geneva
Convention on the Territorial Sea and Contiguous Zone or in UNCLOS; these
are generally installations which allow ships to be harboured, maintained or
repaired and which permit or facilitate the embarkation and disembarkation
of passengers and the loading or unloading of goods.
134. The Court notes, however, that the functions of a dyke are different
from those of a port: in this case, the Sulina dyke may be of use in
protecting shipping destined for the mouth of the Danube and for the ports
situated there. The difference between a port and a dyke extending seawards
has previously been discussed in the travaux préparatoires of Article 8 of
the Geneva Convention on the Territorial Sea and Contiguous Zone. In 1954,
the Special Rapporteur of the ILC observed that “dykes used for the
protection of the coast constituted a separate problem and did not come
under either Article 9 (ports) or Article 10 (roadsteads)”. Subsequently,
the concept
of a “dyke” was no longer used, and reference was made to “jetties” serving
to protect coasts from the sea. The first sentence of Article 11 of UNCLOS
corresponds, apart from one minor change in the wording, to that of Article
8 of the Convention on the Territorial Sea and Contiguous Zone. The second
sentence, providing that “permanent harbour works” shall not include
“off-shore installations and artificial islands”, is new. The expert at the
1958 Conference stated that “harbour works such as jetties [are regarded] as
part of . . . land territory”. It should be noted, however, that the ILC
included the following comment in its report to the General Assembly:
“(3) Where such structures are of excessive length (for instance, a jetty
extending several kilometres into the sea), it may be asked whether this
article [Art. 8] could still be applied . . . As such cases are very rare,
the Commission, while wishing to draw attention to the matter, did not deem
it necessary to state an opinion.”(ILC Yearbook 1956, Vol. II, p. 270.)
In the light of the above, the ILC did not, at the time, intend to define
precisely the limit beyond which a dyke, jetty or works would no longer form
“an integral part of the harbour system”. The Court concludes from this that
there are grounds for proceeding on a case-by-case basis, and that the text
of Article 11 of UNCLOS and the travaux préparatoires do not preclude the
possibility of interpreting restrictively the concept of harbour works so as
to avoid or mitigate the problem of excessive length identified by the ILC.
This may be particularly true where, as here, the question is one of
delimitation of areas seaward of the territorial sea.
135. With regard to the use of the Sulina dyke as a base point for the
present delimitation, the Court must consider the relevance of Romania’s
notification to the United Nations under Article 16 of UNCLOS, in which
Romania used the seaward end of the Sulina dyke as a base point for drawing
the baseline for its territorial sea. This choice of base points was not
contested by Ukraine.
136. Article 16 provides that “the base lines for measuring the breadth of
the territorial sea . . . and the lines of delimitation [of the territorial
sea] shall be shown on charts” (paragraph 1) and that “the coastal State
shall deposit a copy of each such chart or list with the Secretary-General
of the United Nations”. Since Article 57 (regarding the breadth of the
exclusive economic zone) and Article 76, paragraph 1, (regarding the
definition of the continental shelf) of UNCLOS stipulate that these maritime
zones can extend to a distance of 200 nautical miles “from the baselines
from which the breadth of the territorial sea is measured”, the question
arises as to whether the same seaward end of the Sulina dyke has to be
retained for the purpose of the present delimitation.
137. The Court observes that the issue of determining the baseline for the
purpose of measuring the breadth of the continental shelf and the exclusive
economic zone and the issue of identifying base points for drawing an
equidistance/median line for the purpose of delimiting the continental shelf
and the exclusive economic zone between adjacent/opposite States are two
different issues.
In the first case, the coastal State, in conformity with the provisions of
UNCLOS (Articles 7, 9, 10, 12 and 15), may determine the relevant base
points. It is nevertheless an exercise which has always an international
aspect (see Fisheries (United Kingdom v. Norway), Judgment, I.C.J. Reports
1951, p. 132). In the second case, the delimitation of the maritime areas
involving two or
more States, the Court should not base itself solely on the choice of base
points made by one of those parties. The Court must, when delimiting the
continental shelf and exclusive economic zones, select base points by
reference to the physical geography of the relevant coasts.
138. As for the specific characteristics of the seaward end of the Sulina
dyke as a relevant base point for constructing the provisional equidistance
line, the Court points out that, irrespective of its length, no convincing
evidence has been presented that this dyke serves any direct purpose in
port activities. For these reasons, the Court is not satisfied that the
seaward end of the Sulina dyke is a proper base point for the purposes of
the construction of a provisional equidistance line
delimiting the continental shelf and the exclusive economic zones.
139. On the other hand, while the landward end of the dyke may not be an
integral part of the Romanian mainland, it is a fixed point on it. The land
at this point is protected from shifts in the coastline due to marine
processes. As a relevant base point for the purposes of the first stage of
delimitation, it has the advantage, unlike the seaward end of the dyke, of
not giving greater importance to an installation than to the physical
geography of the landmass.
140. For these reasons, the Court is of the opinion that the landward end of
the Sulina dyke where it joins the Romanian mainland should be used as a
base point for the establishment of the
provisional equidistance line.
141. The Court therefore concludes that it will use the Sacalin Peninsula
(44° 50' 28"N and 29° 36' 52"E) and the landward end of the Sulina dyke (45°
09' 51.9"N and 29° 43' 14.5"E) [FN2] as base points on the Romanian coast.
---------------------------------------------------------------------------------------------------------------------
[FN2]
Co-ordinates provided by the Parties in Pulkovo datum.
---------------------------------------------------------------------------------------------------------------------
*
142. The Court will now turn to identifying the relevant base points on
Ukraine’s coast, starting with the sector of adjacent coasts.
143. The Court deems it appropriate in this first sector to use the
south-eastern tip of Tsyganka Island on the Ukrainian side, which is the
counterpart of the landward end of the Sulina dyke on the Romanian side. Its
location is significant, because in this area of adjacency it is the most
prominent point on the Ukrainian coast.
144. In this sector of adjacent coasts, the Court needs also to consider the
relevance of the Ukrainian base point situated on the island of Kubansky as
a base point for use in constructing the provisional equidistance line. The
Court notes that this base point does not produce any effect on the
equidistance line plotted by reference to the base point on Tsyganka Island
on the Ukrainian coast and the base point on the landward end of the Sulina
dyke on the Romanian coast. This base point is therefore to be regarded as
irrelevant for the purposes of the present delimitation.
145. The Court will now consider the base points on the section of Ukraine’s
coast opposite Romania’s coast.
146. It will start with Cape Tarkhankut, the most seaward point facing
Romania’s coast on the Crimean coast. The Crimean coastline juts out
significantly here, and its configuration makes
this cape an appropriate choice as a relevant base point.
147. Cape Khersones, another point on the Crimean coast where the land
protrudes into the sea, also juts out markedly, though less so than Cape
Tarkhankut. This configuration is sufficient to justify choosing Cape
Khersones as a relevant base point.
148. The Court therefore concludes that it will use Tsyganka Island (45° 13'
23.1"N and 29° 45' 33.1"E), Cape Tarkhankut (45° 20' 50"N and 32° 29' 43"E)
and Cape Khersones (44° 35' 04"N and 33° 22' 48"E)3 as base points on the
Ukrainian coast.
149. Serpents’ Island calls for specific attention in the determination of
the provisional equidistance line. In connection with the selection of base
points, the Court observes that there have been instances when coastal
islands have been considered part of a State’s coast, in particular when a
coast is made up of a cluster of fringe islands. Thus in one maritime
delimitation arbitration, an international tribunal placed base points lying
on the low water line of certain fringe islands considered to constitute
part of the very coastline of one of the parties (Award of the Arbitral
Tribunal in the Second Stage of the Proceedings between Eritrea and Yemen
(Maritime Delimitation), 17 December 1999, RIAA, Vol. XXII (2001), pp.
367-368, paras. 139-146). However, Serpents’ Island, lying alone and some 20
nautical miles away from the mainland, is not one of a cluster of fringe
islands constituting “the coast” of Ukraine.
To count Serpents’ Island as a relevant part of the coast would amount to
grafting an extraneous element onto Ukraine’s coastline; the consequence
would be a judicial refashioning of geography, which neither the law nor
practice of maritime delimitation authorizes. The Court is thus of the view
that Serpents’ Island cannot be taken to form part of Ukraine’s coastal
configuration (cf. the islet of Filfla in the case concerning Continental
Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 13).
For this reason, the Court considers it inappropriate to select any base
points on Serpents’ Island for the construction of a provisional
equidistance line between the coasts of Romania and Ukraine. Further aspects
relevant to Serpents’ Island are dealt with at paragraphs 179 to 188 below.
8.2. Construction of the provisional equidistance line
150. Romania argues that the first segment of the maritime boundary
delimiting the maritime areas of the two States situated beyond their
territorial seas was established by successive agreements between Romania
and the Soviet Union: from the final point of the boundary separating the
territorial seas of the two States at 45° 05' 21" N and 30° 02' 27" E, the
maritime boundary passes along the 12-nautical-mile arc of the circle around
Serpents’ Island until it reaches a point situated on that arc at 45° 14'
20" N and 30° 29' 12" E (see Section 4). Romania contends that the maritime
boundary beyond that point was never delimited between Romania and the USSR
or Ukraine. Romania draws a provisional equidistance line from the final
point of the land/river 3Co-ordinates provided by the Parties in Pulkovo
datum. boundary between the two States taking into account the salient base
points of the adjacent Romanian and Ukrainian coasts. These are: on the
Romanian coast, the seaward end of the Sulina dyke; and on the Ukrainian
coast, the island of Kubansky and Cape Burnas. As the point lying on the arc
around Serpents’ Island at 45° 14' 20" N and 30° 29' 12" E, is not situated
on the equidistance line, but about 2.5 nautical miles to the north, the
delimitation of the maritime boundary beyond this point must, in Romania’s
view, start by joining it to the provisional equidistance line. The line
thus drawn passes through the point at 45° 11' 59" N and 30° 49' 16" E,
situated practically mid-way between the 12-nautical-mile arc around
Serpents’ Island and the tripoint as between the Romanian and Ukrainian
adjacent coasts and the opposite Crimean coast, situated at 45° 09' 45" N
and 31° 08' 40" E. Romania contends that, from this point southwards, the
delimitation is governed by the opposite Romanian and Ukrainian coasts.
151. Romania calculates the median line taking into account the salient base
points on the relevant opposite coasts of the two States (the seaward end of
the Sulina dyke and the outer end of the Sacalin Peninsula on the Romanian
coast, and Capes Tarkhankut and Khersones on the Ukrainian coast). Romania’s
equidistance line in the sector of opposite coasts thus coincides with
the segment of the median line running from, in the north, the tripoint as
between the Romanian and Ukrainian adjacent coasts and the opposite Crimean
coast to, in the south, the point beyond which the interests of third States
may be affected, which Romania situates at 43° 26' 50" N and 31° 20' 10" E.
*
152. Ukraine maintains that the provisional equidistance line must be
constructed by reference to the base points on each Party’s baselines from
which the breadth of its territorial sea is measured. Thus, on the Romanian
side, Ukraine uses the base points at the seaward end of the Sulina dyke and
on the Sacalin Peninsula. On its own side, it uses the base points on
Serpents’ Island and at the tip of Cape Khersones. The provisional
equidistance line advocated by Ukraine starts at the point of intersection
of the territorial seas of the Parties identified in Article 1 of the 2003
State Border Régime Treaty (45° 05' 21" N and 30° 02' 27" E). The line then
runs in a southerly direction until the point at 44° 48' 24" N and 30° 10'
56" E, after which it turns to run in a south-easterly direction until the
point at 43° 55' 33" N and 31° 23' 26" E and thereafter continues due south.
**
153. The Court recalls that the base points which must be used in
constructing the provisional equidistance line are those situated on the
Sacalin Peninsula and the landward end of the Sulina dyke on the Romanian
coast, and Tsyganka Island, Cape Tarkhankut and Cape Khersones on the
Ukrainian coast.
154. In its initial segment the provisional equidistance line between the
Romanian and Ukrainian adjacent coasts is controlled by base points located
on the landward end of the Sulina dyke on the Romanian coast and
south-eastern tip of Tsyganka Island on the Ukrainian coast. It runs in a
south-easterly direction, from a point lying midway between these two base
points, until Point A (with co-ordinates 44° 46' 38.7" N and 30° 58' 37.3"
E) where it becomes affected by a base point located on the Sacalin
Peninsula on the Romanian coast. At Point A the equidistance line slightly
changes direction and continues to Point B (with co-ordinates 44° 44' 13.4"
N and 31° 10' 27.7" E) where it becomes affected by the base point located
on Cape Tarkhankut on Ukraine’s opposite coasts. At Point B the equidistance
line turns south-south-east and continues to Point C (with co-ordinates 44°
02' 53.0" N and 31° 24' 35.0" E), calculated with reference to base points
on the Sacalin Peninsula on the Romanian coast and Capes Tarkhankut and
Khersones on the Ukrainian coast. From Point C the equidistance line,
starting at an azimuth of 185° 23' 54.5" [FN4], runs in a southerly direction.
This line remains governed by the base points on the Sacalin Peninsula on
the Romanian coast and Cape Khersones on the Ukrainian coast.
---------------------------------------------------------------------------------------------------------------------
[FN4] The
geographical co-ordinates used by the Parties for the drawing of the
equidistance lines proposed by them are given by reference to Pulkovo datum.
The Court, for its part, has chosen to use WGS 84 datum. The positions
ofPoints A, B and C are given by reference to that geodetic datum. The
equidistance line described in this paragraph is ageodetic line and the
azimuth given is a geodetic azimuth based on WGS 84 datum.
---------------------------------------------------------------------------------------------------------------------
(For the construction of the equidistance line see sketch-maps Nos. 6 and
7.)
9. Relevant circumstances
155. As the Court indicated above (paragraphs 120-121), once the provisional
equidistance line has been drawn, it shall “then [consider] whether there
are factors calling for the adjustment or shifting of that line in order to
achieve an ‘equitable result’” (Land and Maritime Boundary between Cameroon
and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening), Judgment,
I.C.J. Reports 2002, p. 441, para. 288). Such factors have usually been
referred to in the jurisprudence of the Court, since the North Sea
Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands) cases, as the relevant circumstances (Judgment, I.C.J.
Reports 1969, p. 53, para. 53). Their function is to verify that the
provisional equidistance line, drawn by the geometrical method from the
determined base points on the coasts of the Parties is not, in light of the
particular circumstances of the case, perceived as inequitable. If such
would be the case, the Court should adjust the line in order to achieve the
“equitable solution” as required by Articles 74, paragraph 1, and 83,
paragraph 1, of UNCLOS.
156. The Parties suggested and discussed several factors which they consider
as the possible relevant circumstances of the case. They arrive at different
conclusions. Romania argues that its provisional equidistance line achieves
the equitable result and thus does not require any adjustment. Ukraine, on
the other hand, submits that there are relevant circumstances which call for
the adjustment of its provisional equidistance line “by moving the
provisional line closer to the Romanian coast”.
157. Before addressing the relevant circumstances referred to by the
Parties, the Court wishes to recall that the provisional equidistance line
it has drawn in Section 8 above does not coincide with the provisional lines
drawn either by Ukraine or Romania. Therefore, it is this line,
Sketch-Map No. 6: Construction
of the Provisional Equidistance Line
Sketch-Map No. 7: Enlargement
of Sketch-Map No. 6 drawn by the Court, and not by Romania or Ukraine, which will be in the
focus of the Court’s
attention when analysing what the Parties consider to be the relevant
circumstances of the case.
9.1. Disproportion between lengths of coasts
158. The circumstance which Ukraine invokes in order to justify its claim
that the provisional equidistance line should be adjusted by moving the
delimitation line closer to Romania’s coast is the disparity between the
length of the Parties’ coasts abutting on the delimitation area.
*
159. Romania acknowledges that the general configuration of the coasts may
constitute, given the particular geographical context, a relevant
circumstance that can be taken into consideration with a view to adjusting
the equidistance line. However, with regard specifically to any
disproportion between the lengths of the Parties’ coasts, Romania notes that
in a maritime delimitation it is rare for the disparities between the
parties’ coasts to feature as a relevant circumstance. Moreover, in the
present case, there is no manifest disparity in the respective coastal
lengths of Romania and Ukraine.
160. Romania adds that in any event proportionality should be dealt with
“only after having identified the line resulting from the application of the
equitable principles/special circumstances
approach”.
161. In conclusion Romania is of the view that the alleged “geographical
predominance of Ukraine in the area” and “the disparity between coastal
lengths” of the Parties should not be considered relevant circumstances in
the case.
*
162. With regard to the role which may be played by the coastal
configuration, Ukraine states that there is a broad margin of appreciation
as to its scope as a relevant circumstance. In the circumstances of the
current case, Ukraine argues that the coastal configuration clearly shows
the
geographical predominance of Ukraine in the relevant area which also finds
an expression in terms of coastal length: the Ukrainian relevant coast is
more than four times longer than the coast of Romania. Ukraine notes that in
almost all maritime delimitation cases dealt with by international
tribunals, “comparison of the lengths of the relevant coasts has occupied a
quite significant place and even played a decisive role in a number of the
decisions taken”. Thus, according to Ukraine, the marked disproportion
between lengths of the Parties’ coasts is a relevant circumstance to be
taken into account in the construction of a delimitation line and should
result in a shifting of the provisional equidistance line in order to
produce an equitable result.
**
163. The Court observes that the respective length of coasts can play no
role in identifying the equidistance line which has been provisionally
established. Delimitation is a function which is different from the
apportionment of resources or areas (see North Sea Continental Shelf
(Federal
Republic of Germany/Denmark; Federal Republic of Germany/Netherlands),
Judgment, I.C.J. Reports 1969, p. 22, para. 18). There is no principle of
proportionality as such which bears on the
initial establishment of the provisional equidistance line.
164. Where disparities in the lengths of coasts are particularly marked, the
Court may choose to treat that fact of geography as a relevant circumstance
that would require some adjustments to the provisional equidistance line to
be made.
165. In the case concerning Land and Maritime Boundary between Cameroon and
Nigeria, the Court acknowledged “that a substantial difference in the
lengths of the parties’ respective coastlines may be a factor to be taken
into consideration in order to adjust or shift the provisional
delimitation line” (Judgment, I.C.J. Report 2002, p. 446, para. 301;
emphasis added), although it
found that in the circumstances there was no reason to shift the
equidistance line.
166. In the case concerning Maritime Delimitation in the Area between
Greenland and Jan Mayen (Denmark v. Norway), the Court found that the
disparity between the lengths of the coasts of Jan Mayen and Greenland
(approximately 1:9) constituted a “special circumstance” requiring
modification of the provisional median line, by moving it closer to the
coast of Jan Mayen, to avoid inequitable results for both the continental
shelf and the fisheries zone. The Court stated that:
“It should, however, be made clear that taking account of the disparity of
coastal lengths does not mean a direct and mathematical application of the
relationship between the length of the coastal front of eastern Greenland
and that of Jan Mayen.” (Judgment, I.C.J. Reports 1993, p. 69, para. 69.)
Then it recalled its observation from the Continental Shelf (Libyan Arab
Jamahiriya/Malta) case:
“If such a use of proportionality were right, it is difficult indeed to see
what room would be left for any other consideration; for it would be at once
the principle of entitlement to continental shelf rights and also the method
of putting that principle into operation. Its weakness as a basis of
argument, however, is that the use of proportionality as a method in its own
right is wanting of support in the practice of States, in the public
expression of their views at (in particular) the Third United Nations
Conference on the Law of the Sea, or in the jurisprudence.” (Continental
Shelf (Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 45,
para. 58.)
In the latter case, the Court was of the view that the difference in the
lengths of the relevant coasts of Malta and Libya (being in ratio 1:8) “is
so great as to justify the adjustment of the median line” (ibid., p. 50,
para. 68; emphasis added). The Court added that “the degree of such
adjustment does not depend upon a mathematical operation and remains to be
examined” (ibid.).
167. The Court further notes that in the Delimitation of the Maritime
Boundary in the Gulf of Maine Area (Canada/United States of America) case,
the Chamber considered that “in certain circumstances, the appropriate
consequences may be drawn from any inequalities in the extent of
the coasts of two States into the same area of delimitation” (Judgment,
I.C.J. Reports 1984, p. 313, para. 157; emphasis added). However, it must be
kept in mind that the Chamber did so in the context of discussing what could
be “the equitable criteria that may be taken into consideration for an
international maritime delimitation” (ibid., p. 312, para. 157; emphasis
added). It then further elaborated on this point by stating
“that to take into account the extent of the respective coasts of the
Parties concerned does not in itself constitute either a criterion serving
as a direct basis for a delimitation, or a method that can be used to
implement such delimitation. The Chamber recognizes that this concept is put
forward mainly as a means of checking whether a provisional delimitation
established initially on the basis of other criteria, and by the use of a
method which has nothing to do with that concept, can or cannot be
considered satisfactory in relation to certain geographical features of the
specific case, and whether it is reasonable or otherwise to correct it
accordingly. The Chamber’s views on this subject may be summed up by
observing that a maritime delimitation can certainly not be established by a
direct division of the area in dispute proportional to the respective
lengths of the coasts belonging to the parties in the relevant area, but it
is equally certain that a substantial disproportion to the lengths of those
coasts that resulted from a delimitation effected on a different basis would
constitute a circumstance calling for an appropriate correction.” (Ibid., p.
323, para. 185; emphasis added.)
168. In the present case, however the Court sees no such particularly marked
disparities between the relevant coasts of Ukraine and Romania that would
require it to adjust the provisional equidistance line at this juncture.
Although there is doubtless a difference in the length of the relevant
coasts of the Parties, the Court recalls that it previously (see paragraph
100 above) excluded the coast of Karkinits’ka Gulf (measuring some 278 km)
from further consideration. The Court further notes that it cannot disregard
the fact that a good portion of the Ukrainian coast which it considers as
relevant projects into the same area as other segments of the Ukrainian
coast, thus strengthening but not spatially expanding the Ukrainian
entitlement.
9.2. The enclosed nature of the Black Sea and the delimitations already
effected in the region
169. Romania notes that the enclosed nature of the Black Sea is also a
relevant circumstance as part of the wider requirement to take account of
the geographical context of the area to be delimited. According to Romania,
in considering the equitable nature of an equidistance line, the
“general maritime geography” of the Black Sea must be assessed. In Romania’s
view, this geographical factor is to be considered together with any
pre-existing delimitation agreements so
that any new delimitation should not dramatically depart from the method
previously used in the
same sea between other riparian States in order not to produce an
inequitable result.
170. Romania contends that all the delimitation agreements concluded in the
Black Sea used equidistance as the method for the delimitation of the
continental shelf and the exclusive economic zones. Romania adds that the
lines of delimitation established by two of these agreements end with
provisionally defined segments, the definitive course of which is to depend
on subsequent discussions, and that the reason for this was that the Parties
wished to avoid prejudicing the interests of third parties and that they had
Romania in mind.
171. Romania concludes that the Black Sea’s nature as an enclosed sea and
its rather small size, together with the agreed solutions established in the
delimitation agreements in force, constitute a relevant circumstance which
must be taken into account in the delimitation process for Romania’s and
Ukraine’s maritime areas.
*
172. In Ukraine’s view, there is “no support in law or in the factual
context” for Romania’s arguments regarding the characterization of the Black
Sea as an enclosed sea and the importance of maritime delimitation
agreements previously concluded between certain States bordering the Black
Sea. According to Ukraine, there is no special régime governing
delimitations taking place in an enclosed sea simply because of this nature.
Ukraine therefore considers that the enclosed character of the Black Sea “is
not by itself a circumstance which ought to be regarded as relevant for
delimitation purposes” and has no bearing on the method of delimitation to
be applied in the
present proceedings.
173. Ukraine further notes that in general terms, bilateral agreements
cannot affect the rights of third parties and, as such, the existing
maritime delimitation agreements in the Black Sea cannot influence the
present dispute.
Ukraine states that only in a limited sense can the presence of third States
in the vicinity of the area to be delimited be considered a relevant
circumstance. However, this has nothing to do with the choice of the actual
method of delimitation or the character of a sea (whether or not it is
enclosed). According to Ukraine, the presence of third States may be
relevant only to the extent that the Court may have to take precautions in
identifying a precise endpoint of the delimitation line so as to avoid
potential prejudice to States situated on the periphery of the delimitation
area
.
**
174. The Court recalls that it has intimated earlier, when it briefly
described the delimitation methodology, that it would establish a
provisional equidistance line (see paragraph 116 above). This choice was not
dictated by the fact that in all the delimitation agreements concerning the
Black Sea this method was used.
175. Two delimitation agreements concerning the Black Sea were brought to
the attention of the Court. The first agreement, the Agreement concerning
the Delimitation of the Continental Shelf in the Black Sea, was concluded
between Turkey and the USSR on 23 June 1978. Some eight years later, they
agreed, through an Exchange of Notes dated 23 December 1986 and 6 February
1987, that the continental shelf boundary agreed in their 1978 Agreement
would also constitute the boundary between their exclusive economic zones.
The westernmost segment of the line, between two points with co-ordinates
43° 20' 43" N and 32° 00' 00" E and co-ordinates 43° 26' 59" N and 31° 20'
48" E, respectively, remained undefined and to be settled subsequently at a
convenient time. After the dissolution of the USSR at the end of 1991, the
1978 Agreement and the Agreement reached through the Exchange of Notes
remained in force not only for the Russian Federation, as the State
continuing the international legal personality of the former USSR, but also
the successor States of the USSR bordering the Black Sea, Ukraine being one
of them.
176. The second agreement is the Agreement between Turkey and Bulgaria on
the determination of the boundary in the mouth area of the
Rezovska/Mutludere River and delimitation of the maritime areas between the
two States in the Black Sea, signed on 4 December 1997. The drawing of the
delimitation line of the continental shelf and the exclusive economic zone
further to the north-east direction, between geographical point 43° 19' 54"
N and 31° 06' 33" E and geographical point 43° 26' 49" N and 31° 20' 43" E,
was left open for subsequent negotiations at a suitable time.
177. The Court will bear in mind the agreed maritime delimitations between
Turkey and Bulgaria, as well as between Turkey and Ukraine, when considering
the endpoint of the single maritime boundary it is asked to draw in the
present case (see Section 10 below).
178. The Court nevertheless considers that, in the light of the
above-mentioned delimitation agreements and the enclosed nature of the Black
Sea, no adjustment to the equidistance line as provisionally drawn is called
for.
9.3. The presence of Serpents’ Island in the area of delimitation
179. The Parties disagree as to the proper characterization of Serpents’
Island and the role this maritime feature should play in the delimitation of
the continental shelf and the Parties’ exclusive economic zones in the Black
Sea.
180. Romania maintains that Serpents’ Island is entitled to no more than a
12-nautical-mile territorial sea, and that it cannot be used as a base point
in drawing a delimitation line beyond the 12-mile limit. Romania claims that
Serpents’ Island is a rock incapable of sustaining human habitation or
economic life of its own, and therefore has no exclusive economic zone or
continental shelf, as provided for in Article 121, paragraph 3, of the 1982
UNCLOS. According to Romania, Serpents’ Island qualifies as a “rock”
because: it is a rocky formation in the geomorphologic sense; it is devoid
of natural water sources and virtually devoid of soil, vegetation and fauna.
Romania claims that human survival on the island is dependent on supplies,
especially of water, from elsewhere and that the natural conditions there do
not support the development of economic activities. It adds that “[t]he
presence of some individuals, . . . because they have to perform an official
duty such as maintaining a lighthouse, does not amount to sustained ‘human
habitation’”.
181. Romania further argues that Serpents’ Island does not form part of the
coastal configuration of the Parties and that its coast cannot therefore be
included among Ukraine’s relevant coasts for purposes of the delimitation.
182. Romania nevertheless admits that in the present case the presence of
Serpents’ Island “with its already agreed belt of 12-nautical-mile
territorial sea” might be a relevant circumstance. It asserts that under
international jurisprudence and State practice, small islands, irrespective
of their legal characterization, have frequently been given very reduced or
no effect in the delimitation of the continental shelf, exclusive economic
zone or other maritime zones due to the inequitable effect they would
produce. Thus, contends Romania, in the present case the provisional
equidistance line should be drawn between the relevant mainland coasts of
the Parties, with minor maritime formations only being considered at a later
stage as possible relevant circumstances. Romania states that Serpents’
Island, given its location, could be considered as a relevant circumstance
only in the sector of the delimitation area where the coasts are adjacent
(in other words, the provisional equidistance line would have to be shifted
so as to take into consideration the maritime boundary along the
12-nautical-mile arc around Serpents’ Island, which “cannot generate
maritime zones beyond 12 nautical miles”). Owing to its remoteness from the
Ukrainian coast of Crimea, Serpents’ Island cannot, according to Romania,
play any role in the delimitation in the area where the coasts are opposite.
In short, Romania considers that, although Serpents’ Island may qualify as a
“special circumstance”, it should not be given any effect beyond 12 nautical
miles.
*
183. Ukraine argues that Serpents’ Island has a baseline which generates
base points for the construction of the provisional equidistance line. Thus,
in Ukraine’s view, the coast of the island constitutes part of Ukraine’s
relevant coasts for purposes of the delimitation and cannot be reduced to
just a relevant circumstance to be considered only at the second stage of
the delimitation process after the provisional equidistance line has been
established.
184. According to Ukraine, Serpents’ Island is indisputably an “island”
under Article 121, paragraph 2, of UNCLOS, rather than a “rock”. Ukraine
contends that the evidence shows that Serpents’ Island can readily sustain
human habitation and that it is well established that it can sustain an
economic life of its own. In particular, the island has vegetation and a
sufficient supply of fresh water. Ukraine further asserts that Serpents’
Island “is an island with appropriate buildings and accommodation for an
active population”. Ukraine also argues that paragraph 3 of Article 121 is
not relevant to this delimitation because that paragraph is not concerned
with questions of delimitation but is, rather, an entitlement provision that
has no practical application with respect to a maritime area that is, in any
event, within the 200-mile limit of the exclusive economic zone and
continental shelf of a mainland coast.
**
185. In determining the maritime boundary line, in default of any
delimitation agreement within the meaning of UNCLOS Articles 74 and 83, the
Court may, should relevant circumstances so suggest, adjust the provisional
equidistance line to ensure an equitable result. In this phase the Court may
be called upon to decide whether this line should be adjusted because of the
presence of small islands in its vicinity. As the jurisprudence has
indicated, the Court may on occasion decide not to take account of very
small islands or decide not to give them their full potential entitlement to
maritime zones, should such an approach have a disproportionate effect on
the delimitation line under consideration (see Continental Shelf (Libyan
Arab Jamahiriya/Malta), Judgment, I.C.J.Reports 1985, p. 48, para. 64;
Maritime Delimitation and Territorial Questions between Qatar and Bahrain
(Qatar v. Bahrain), Merits, Judgment, I.C.J. Reports 2001, p. 104, para.
219; Territorial and Maritime Dispute between Nicaragua and Honduras in the
Caribbean Sea (Nicaragua v. Honduras), Judgment of 8 October 2007, paras.
302 et seq.).
186. The Court recalls that it has already determined that Serpents’ Island
cannot serve as a base point for the construction of the provisional
equidistance line between the coasts of the Parties, that it has drawn in
the first stage of this delimitation process, since it does not form part of
the general configuration of the coast (see paragraph 149 above). The Court
must now, at the second stage of the delimitation, ascertain whether the
presence of Serpents’ Island in the maritime delimitation area constitutes a
relevant circumstance calling for an adjustment of the provisional
equidistance line.
187. With respect to the geography of the north-western part of the Black
Sea, the Court has taken due regard of the fact that Ukraine’s coast lies on
the west, north and east of this area. The Court notes that all of the areas
subject to delimitation in this case are located in the exclusive economic
zone and the continental shelf generated by the mainland coasts of the
Parties and are moreover within 200 nautical miles of Ukraine’s mainland
coast. The Court observes that Serpents’ Island is situated approximately 20
nautical miles to the east of Ukraine’s mainland coast in the area of the
Danube delta (see paragraph 16 above). Given this geographical configuration
and in the context of the delimitation with Romania, any continental shelf
and exclusive economic zone entitlements possibly generated by Serpents’
Island could not project further than the entitlements generated by
Ukraine’s mainland coast because of the southern limit of the delimitation
area as identified by the Court (see paragraph 114 and sketch-map No. 5).
Further, any possible entitlements generated by Serpents’ Island in an
eastward direction are fully subsumed by the entitlements generated by the
western and eastern mainland coasts of Ukraine itself. The Court also notes
that Ukraine itself, even though it considered Serpents’ Island to fall
under Article 121, paragraph 2, of UNCLOS, did not extend the relevant area
beyond the limit generated by its mainland coast, as a consequence of the
presence of Serpents’ Island in the area of delimitation (see sketch-map No.
3).
In the light of these factors, the Court concludes that the presence of
Serpents’ Island does not call for an adjustment of the provisional
equidistance line.
In view of the above the Court does not need to consider whether Serpents’
Island falls under paragraphs 2 or 3 of Article 121 of UNCLOS nor their
relevance to this case.
188. The Court further recalls that a 12-nautical-mile territorial sea was
attributed to Serpents’ Island pursuant to agreements between the Parties.
It concludes that, in the context of the present case, Serpents’ Island
should have no effect on the delimitation in this case, other than that
stemming from the role of the 12-nautical-mile arc of its territorial sea.
9.4. The conduct of the Parties (oil and gas concessions, fishing activities
and naval patrols)
189. Ukraine suggests that State activities in the relevant area “constitute
a relevant circumstance which operates in favour of the continental
shelf/EEZ claim line proposed by Ukraine”. Ukraine explains that it does not
point to this conduct of the Parties in order to show the existence of a
line arising from a tacit agreement or a modus vivendi. Instead, Ukraine
seeks to assess the claims of the Parties in relation to their actual
conduct. According to Ukraine, it is significant that Romania’s activities,
or lack of them, are “fundamentally inconsistent” with Romania’s argument
that there was a pre-existing maritime delimitation in the disputed area
extending out to “Point X”. Furthermore, Ukraine contends that the lack of
any comparable operations by Romania in the disputed area is incompatible
with the position taken by Romania in the proceedings before the Court.
190. Ukraine argues that in 1993, 2001 and 2003 it licensed activities
relating to the exploration of oil and gas deposits within the continental
shelf/exclusive economic zone area claimed by Ukraine in the current case.
It asserts that the existence of these licences demonstrates that Ukraine,
both before and after the 1997 Additional Agreement, authorized activities
relating to the exploration of oil and gas deposits in areas of the
continental shelf to which Romania lays claim in these proceedings. It adds
that prior to 2001, Romania never protested Ukraine’s oil and gas activities
in areas now claimed by Romania. Ukraine concludes on this point that its
oil-related activities are consistent with its delimitation line and should
be taken into account together with the other relevant circumstances, in
particular the physical geography, in order to achieve an equitable
solution.
191. Ukraine further argues that the exclusive economic zone and continental
shelf boundary it claims furthermore corresponds generally to the limit of
the Parties exclusive fishing zones “as respected by both Romania and
Ukraine in their administration of fishing in the north-west part of the
Black Sea”. Ukraine emphasizes that it was Ukraine and not Romania that has
been active in policing that part of the area. Ukraine contends that Romania
has neither demonstrated any interest in patrolling the area nor has it
objected to the fact that the Ukrainian coastguard assumed the sole
responsibility of intercepting illegal fishing vessels and, when possible,
escorting them out of Ukraine’s exclusive economic zone and taking any other
appropriate measures.
192. With regard to the notion of a critical date introduced by Romania,
Ukraine states that “even assuming that there was a critical date at all,
and that the critical date would have a role to play in maritime
delimitation, it is the date of Romania’s Application: 16 September 2004”.
*
193. Romania does not consider that State activities in the relevant area,
namely licenses for the exploration and exploitation of oil and gas and
fishing practices, constitute relevant circumstances. As a matter of legal
principle, “effectivités” or “State activities” cannot constitute
an element to be taken into account for the purposes of maritime
delimitation. Romania notes that maritime “effectivités” can only be taken
into account if they “reflect a tacit agreement” which might constitute a
relevant circumstance for delimitation. In order to come within this
“exception” to the general rule, it notes that only State activities prior
to the critical date may be relevant and that they must be sufficient to
prove that “a tacit agreement or modus vivendi exists”. According to
Romania, the “effectivités” presented by Ukraine do not reveal the existence
of a “de facto line” or of a “pattern of conduct” proving one way or another
an agreement between the Parties, or acquiescence by Romania relating in any
way to maritime delimitation. These activities cannot therefore constitute
an element “undermining Romania’s argument regarding the 1949
Procès-Verbaux”. Romania concludes that it is evident from all the elements
regarding the “State activities” in the disputed area that Ukraine has
“failed to demonstrate that these State activities comply, in fact or in
law, with the necessary criteria that might transform them into a relevant
circumstance able to have an impact on [the] delimitation”.
194. Romania further recalls that under the 1997 Additional Agreement the
two Parties clearly recognized in writing the existence of a dispute
regarding the maritime delimitation, and set the framework for future
negotiations to conclude a delimitation agreement. Romania adds that the
Agreement’s provisions regarding the existence of the dispute were a mere
confirmation of a factual situation that had already existed for a long
time. Thus any oil related practice occurring after the conclusion of the
1997 Additional Agreement is, in its view, irrelevant in the present
proceedings as the dispute had already crystallized by that date.
195. Romania concludes that Ukraine’s oil concessions practice offers no
support to the latter’s claimed delimitation for the following reasons.
First, the area covered by the Ukrainian concessions “does not even roughly
correspond to its claim in the present proceedings”. Second, two of the
three licences were issued in 2001 and 2003, i.e., after the critical date
of 1997. Moreover, Romania consistently objected to Ukrainian hydrocarbon
activity.
196. With regard to fishing activities, Romania contests that the practice
of the Parties has any bearing on the maritime delimitation in the present
case since neither party economically depends on fisheries activities in an
area in which pelagic fish stocks are limited; the practice invoked by
Ukraine is recent and only covers a small part of the area in dispute; and
it has always been challenged by Romania and has never been recognized by
third States. With regard to the naval patrols, Romania submits, even if
they could be considered a relevant circumstance, quod non, all the naval
incidents reported by Ukraine are subsequent to the critical date and as
such are in any event irrelevant.
**
197. The Court recalls that it had earlier concluded that there is no
agreement in force between the Parties delimiting the continental shelf and
the exclusive economic zones of the Parties (see paragraph 76 above).
It further notes that Ukraine is not relying on State activities in order to
prove a tacit agreement or modus vivendi between the Parties on the line
which would separate their respective exclusive economic zones and
continental shelves. It rather refers to State activities in order to
undermine the line claimed by Romania.
198. The Court does not see, in the circumstances of the present case, any
particular role for the State activities invoked above in this maritime
delimitation. As the Arbitral Tribunal in the case between Barbados and
Trinidad and Tobago observed, “[r]esource-related criteria have been treated
more cautiously by the decisions of international courts and tribunals,
which have not generally applied this factor as a relevant circumstance”
(Award of 11 April 2006, RIAA, Vol. XXVII, p. 214, para. 241). With respect
to fisheries, the Court adds that no evidence has been submitted to it by
Ukraine that any delimitation line other than that claimed by it would
“likely to entail catastrophic repercussions for the livelihood and economic
well-being of the population” (Delimitation of the Maritime Boundary in the
Gulf of Maine Area (Canada/United States of America), Judgment, I.C.J.
Reports 1984, p. 342, para. 237).
Since the Court does not consider that the above-mentioned State activities
constitute a relevant circumstance in the present case, the issue of
critical date discussed by the Parties does not require a response from the
Court.
9.5. Any cutting off effect
199. Romania contends that its proposed maritime boundary does not cut off
the entitlements to the continental shelf and to an exclusive economic zone
of either Romania or Ukraine. The area attributed to each Party does not
encroach on the natural prolongation of the other.
Romania argues that Ukraine’s delimitation line leads to a cut-off of
Romania’s maritime entitlements, in particular in the northern sector of its
coast between the Sulina dyke and the Sacalin Peninsula. Romania states that
the delimitation line advocated by Ukraine would make it
extremely difficult for Romania to gain access to the port of Sulina and the
maritime branch of the Danube, which is an important route for the transit
of merchandise. In short, according to Romania, Ukraine’s claimed line
results in a dramatic curtailment of the maritime areas off the
Romanian coast, “as if the projection of every stretch of Ukraine’s coast
run unobstructed in every direction while there is no opposing or adjacent
Romanian territory”.
*
200. According to Ukraine, Romania’s line results in a two-fold cut-off of
Ukraine’s maritime entitlements. First, the maritime entitlements of
Serpents’ Island are dramatically truncated by allocating no continental
shelf and no exclusive economic zone to it. Second, Ukraine’s south-facing
mainland coast is deprived of the area to which it is legally entitled:
“[T]he end result is clearly inequitable and represents a fundamental
encroachment on continental shelf and exclusive economic areas that should
appertain to Ukraine . . .”. Thus, Ukraine argues that “Romania’s versions
of equidistance produces a marked cut-off effect of the projection of
Ukraine’s coastal front north of the land boundary”. Moreover Ukraine
asserts that
“not only does Romania’s line encroach upon the extension or projection of
Ukraine’s south-east-facing coast -- the coast just above the land boundary
-- it also produces a cut-off effect on the projection of Ukraine’s
south-facing coast lying beyond Odessa”.
Ukraine argues that its line fully respects the principle of
non-encroachment. It reflects the geographical fact that “Ukraine’s coast
fronting the area to be delimited projects in essentially three directions
while Romania’s coast projects basically in a single direction --
south-eastwards”.
**
201. The Court observes that the delimitation lines proposed by the Parties,
in particular their first segments, each significantly curtail the
entitlement of the other Party to the continental shelf
and the exclusive economic zone. The Romanian line obstructs the entitlement
of Ukraine generated by its coast adjacent to that of Romania, the
entitlement further strengthened by the northern coast of Ukraine. At the
same time, the Ukrainian line restricts the entitlement of Romania generated
by its coast, in particular its first sector between the Sulina dyke and the
Sacalin Peninsula.
By contrast, the provisional equidistance line drawn by the Court avoids
such a drawback as it allows the adjacent coasts of the Parties to produce
their effects, in terms of maritime entitlements, in a reasonable and
mutually balanced way. That being so, the Court sees no reason
to adjust the provisional equidistance line on this ground.
9.6. The security considerations of the Parties
202. Romania asserts that there is no evidence to suggest that the
delimitation advanced by it would adversely affect Ukraine’s security
interests, including Serpents’ Island, which has a belt of maritime space of
12 nautical miles.
In Romania’s view, Ukraine’s delimitation line runs unreasonably close to
the Romanian coast and thus encroaches on the security interests of Romania.
*
203. Ukraine claims that its line in no way compromises any Romanian
security interests because Ukraine’s delimitation line accords to Romania
areas of continental shelf and exclusive economic zone off its coastline. In
this regard Ukraine refers to “the predominant interest Ukraine has for
security and other matters as a function of its geographical position along
this part of the Black Sea on three sides of the coast” and maintains that
Ukraine has been the only party to police the area and to prevent illegal
fishing and other activities in that area. According to Ukraine, its claim
is consistent with this aspect of the conduct of the Parties, whereas
Romania’s claim is not.
**
204. The Court confines itself to two observations. First, the legitimate
security considerations of the parties may play a role in determining the
final delimitation line (see Continental Shelf (Libyan Arab
Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, p. 42, par. 51). Second,
in the present case however, the provisional equidistance line it has drawn
substantially differs from the lines drawn either by Romania or Ukraine. The
provisional equidistance line determined by the Court fully respects the
legitimate security interests of either Party. Therefore, there is no need
to adjust the line on the basis of this consideration.
10. The line of delimitation
205. The Court takes note of the fact that Article 1 of the 2003 State
Border Régime Treaty situates the meeting point of the territorial seas of
the Parties at 45° 05' 21" N and 30° 02' 27" E.
This suffices for the fixing of the starting-point.
Romania and Ukraine have both indicated, in considerable detail, the course
that their respective delimitation lines would then follow beyond the point
fixed by Article 1 of the 2003 State Border Régime Treaty (see paragraph 13
above and sketch-map No. 1). The Court notes that the Parties’ positions
differ in this regard.
206. The delimitation line decided by the Court, for which neither the
seaward end of the Sulina dyke nor Serpents’ Island is taken as a base
point, begins at Point 1 and follows the 12-nautical-mile arc around
Serpents’ Island until it intersects with the line equidistant from
Romania’s and Ukraine’s adjacent coasts, as defined above; from there, it
follows that line until it becomes affected by base points on the opposite
coasts of Romania and Ukraine. From this turning point the delimitation line
runs along the line equidistant from Romania’s and Ukraine’s opposite coasts
(for the course of the equidistance line see paragraph 154 above).
207. Romania maintains that the endpoint of the delimitation line is
situated at co-ordinates 43° 26' 50" N and 31° 20' 10" E (Point Z). It
asserts that drawing the delimitation line up to Point Z does not affect any
possible entitlements of third countries to maritime areas, as Point Z is
“practically the point equidistant to the Romanian, Ukrainian and Turkish
coasts, and is farther to
the Bulgarian coast”.
208. Ukraine argues that no endpoint of the delimitation should be
specified, so as to avoid any encroachment on possible entitlements of third
States; the line would therefore end in an arrow. The line advocated by
Ukraine continues from the point identified by it as Point 3 along the
azimuth 156 until it reaches the point where the interests of third States
potentially come into play.
209. The Court considers that the delimitation line follows the equidistance
line in a southerly direction until the point beyond which the interests of
third States may be affected.
11. The disproportionality test
210. The Court now turns to check that the result thus far arrived at, so
far as the envisaged delimitation line is concerned, does not lead to any
significant disproportionality by reference to
the respective coastal lengths and the apportionment of areas that ensue.
This Court agrees with
the observation that
“it is disproportion rather than any general principle of proportionality
which is the relevant criterion or factor . . . there can never be a
question of completely refashioning nature . . . it is rather a question of
remedying the disproportionality and inequitable effects produced by
particular geographical configurations or features” (Anglo-French
Continental Shelf Case, RIAA, Vol. XVIII, p. 58, para. 101).
211. The continental shelf and exclusive economic zone allocations are not
to be assigned in proportion to length of respective coastlines. Rather, the
Court will check, ex post facto, on the equitableness of the delimitation
line it has constructed (Delimitation of the maritime boundary between
Guinea and Guinea-Bissau, RIAA, Vol. XIX, paras. 94-95).
212. This checking can only be approximate. Diverse techniques have in the
past been used for assessing coastal lengths, with no clear requirements of
international law having been shown as to whether the real coastline should
be followed, or baselines used, or whether or not coasts relating to
internal waters should be excluded.
213. The Court cannot but observe that various tribunals, and the Court
itself, have drawn different conclusions over the years as to what disparity
in coastal lengths would constitute a significant disproportionality which
suggested the delimitation line was inequitable, and still required
adjustment. This remains in each case a matter for the Court’s appreciation,
which it will exercise by reference to the overall geography of the area.
214. In the present case the Court has measured the coasts according to
their general direction. It has not used baselines suggested by the Parties
for this measurement. Coastlines alongside waters lying behind gulfs or deep
inlets have not been included for this purpose. These measurements are
necessarily approximate given that the purpose of this final stage is to
make sure there is no significant disproportionality.
215. It suffices for this third stage for the Court to note that the ratio
of the respective coastal lengths for Romania and Ukraine, measured as
described above, is approximately 1:2.8 and the ratio of the relevant area
between Romania and Ukraine is approximately 1:2.1. 216. The Court is not of
the view that this suggests that the line as constructed, and checked
carefully for any relevant circumstances that might have warranted
adjustment, requires any alteration.
12. The maritime boundary delimiting the continental shelf and exclusive
economic zones
217. The Court observes that a maritime boundary delimiting the continental
shelf and exclusive economic zones is not to be assimilated to a State
boundary separating territories of States. The former defines the limits of
maritime zones where under international law coastal States have certain
sovereign rights for defined purposes. The latter defines the territorial
limits of State sovereignty. Consequently, the Court considers that no
confusion as to the nature of the maritime boundary delimiting the exclusive
economic zone and the continental shelf arises and will thus employ this
term.
218. The line of the maritime boundary established by the Court begins at
Point 1, the point of intersection of the outer limit of the territorial sea
of Romania with the territorial sea of Ukraine around Serpents’ Island as
stipulated in Article 1 of the 2003 State Border Régime Treaty (see
paragraph 28 above). From Point 1 it follows the arc of the 12-nautical-mile
territorial sea of Serpents’ Island until the arc intersects at Point 2,
with co-ordinates 45° 03' 18.5" N and 30° 09' 24.6" E, with a line
equidistant from the adjacent coasts of Romania and Ukraine, plotted by
reference to base points located on the landward end of the Sulina dyke and
the south-eastern tip
of Tsyganka Island. The maritime boundary from Point 2 continues along the
equidistance line FN5 in a south-easterly direction until Point 3, with
co-ordinates 44° 46' 38.7" N and 30° 58' 37.3" E (Point A of the provisional
equidistance line), where the equidistance line becomes affected by a base
point located on the Sacalin Peninsula.
---------------------------------------------------------------------------------------------------------------------
FN5
For the description of the entire course of the equidistance line, see
paragraph 154 above.
---------------------------------------------------------------------------------------------------------------------
From Point 3 the maritime boundary follows the equidistance line in a
south-easterly direction to Point 4, with co-ordinates 44° 44' 13.4" N and
31° 10' 27.7" E (Point B of the provisional equidistance line), where the
equidistance line becomes affected by the base point located on Cape
Tarkhankut on Ukraine’s opposite coast and turns south-south-east. From
Point 4 the boundary traces the line equidistant from the opposite coasts of
Romania and Ukraine until Point 5, with co-ordinates 44° 02' 53.0" N and 31°
24' 35.0" E) (Point C of the provisional equidistance line), which is
controlled by base points on the Sacalin Peninsula on the Romanian coast and
Capes Tarkhankut and Khersones on the Ukrainian coast, from where it
continues along the equidistance line in a southerly direction starting at a
geodetic azimuth of 185° 23' 54.5" until the maritime boundary reaches the
area where the rights of third States may be affected (see sketch-maps Nos.
8 and 9).
The geographical co-ordinates for Points 2, 3, 4 and 5 of the single
maritime boundary set out in this paragraph and in the operative clause
(paragraph 219) are given by reference to WGS 84 datum.
***
Sketch-Map No. 8: Course of the
Maritime Boundary in the Vicinity of Serpents' Island
Sketch-Map No. 9: Course of the
Maritime Boundary 13. Operative clause
219. For these reasons,
The Court,
Unanimously,
Decides that starting from Point 1, as agreed by the Parties in Article 1 of
the 2003 State Border Régime Treaty, the line of the single maritime
boundary delimiting the continental shelf and the exclusive economic zones
of Romania and Ukraine in the Black Sea shall follow the 12-nautical-mile
arc of the territorial sea of Ukraine around Serpents’ Island until Point 2
(with co-ordinates 45° 03' 18.5" N and 30° 09' 24.6" E) where the arc
intersects with the line equidistant from Romania’s and Ukraine’s adjacent
coasts. From Point 2 the boundary line shall follow the equidistance line
through Points 3 (with co-ordinates 44° 46' 38.7" N and 30° 58' 37.3" E) and
4 (with co-ordinates 44° 44' 13.4" N and 31° 10' 27.7" E) until it reaches
Point 5 (with co-ordinates
44° 02' 53.0" N and 31° 24' 35.0" E). From Point 5 the maritime boundary
line shall continue along the line equidistant from the opposite coasts of
Romania and Ukraine in a southerly direction starting at a geodetic azimuth
of 185° 23' 54.5" until it reaches the area where the rights of third States
may be affected.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this third day of February, two thousand and nine,
in three copies, one of which will be placed in the archives of the Court
and the others transmitted to the Government of Romania and
the Government of Ukraine, respectively.
(Signed) Rosalyn HIGGINS,
President.
(Signed) Philippe COUVREUR,
Registrar.
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